Services and Subscription Agreement

V072910

IMPORTANT-READ THIS YIELD SOFTWARE, INC. SERVICES AND SUBSCRIPTION AGREEMENT (THIS “SERVICES AGREEMENT”) CAREFULLY BEFORE CONTINUING REGISTRATION. BY CLICKING THE “I ACCEPT” BUTTON OR CHECKBOX, ISSUING A PURCHASE ORDER THAT REFERENCES THIS AGREEMENT, OR OTHERWISE ACCEPTING THIS SERVICES AGREEMENT, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS SERVICES AGREEMENT. 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 THE TERMS AND CONDITIONS OF THIS SERVICES AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS SERVICES AGREEMENT SHALL REFER TO SUCH ENTITY, IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MAY NOT USE THE YIELD SOFTWARE SERVICE.

The Yield Software Service consists of Internet marketing functionality including search engine optimization, search engine marketing and landing page optimization as well as the related system administration, system management, and system monitoring activities that Yield Software provides. You may not access the Yield Software Service if you are a direct competitor of Yield Software. Yield Software reserves the right in its sole discretion to determine the foregoing and to deny, refuse, or eliminate service to anyone at any time.

This Services Agreement is between you and Yield Software, Inc. (“Yield Software”). The terms of this Services Agreement shall apply to use of the Yield Software Service and the consulting services provided by Yield Software (the “Consulting Services”) on the Yield Software website (the “Site”) (the Yield Software Service and the Consulting Services are referred to collectively as the “Services”), and it supplements the Terms of Use Agreement that governs use of the Site. Some of the Consulting Services may also be subject to posted guidelines, rules or terms of service (“Additional Terms”). If there is any conflict between this Services Agreement and the Terms of Use Agreement, this Services Agreement shall take precedence in relationship to the Services. If there is any conflict between this Services Agreement and the Additional Terms, the Additional Terms take precedence in relation to that Service. This Services Agreement, the Terms of Use Agreement, and any Additional Terms shall collectively be referred to herein as the “Agreement.” Purchase Orders placed by any advertising or similar agency (“Agency”) in accordance with this Services Agreement (“Agency Purchase Orders”) will specify the Services ordered, the price for the Services, including any minimum monthly commitment, and any other agreed upon payment terms (the “Agency Payment Terms”), and are subject to acceptance by Yield Software. Except for Agency Payment Terms specified in any Agency Purchase Order, the terms of the Agreement shall control over any different or additional terms in any such purchase order or other non-Yield Software ordering document, and no terms included in any such Agency Purchase Order or in any other non-Yield Software ordering document shall apply to the Services and/or any materials developed by Yield Software or its third party providers (“Third Party Providers”) and delivered to you in the course of performing Services (“Yield Software Materials”).

If you are obtaining or have obtained the Services from an Agency , then: (a) the terms of this Agreement shall apply to your use of any of the Services that are being obtained or were obtained by you from the Agency; (b) this Agreement is between Yield Software and you; however, the terms of the Agency agreement by which you order the Services (which shall be referred to herein as the “Agency Agreement”) is between you and the Agency that has executed the Agency Agreement with you; (c) you agree that Sections 7 and 8 of this Services Agreement do not apply to you and that you will look to Agency for any warranties or services related to the Services; and (d) notwithstanding the last sentence of the preceding paragraph, the Agency Agreement shall not amend or modify any terms of this Agreement. You acknowledge and agree that the Agency has no authority to bind Yield Software or to create any obligation, express or implied, on Yield Software’s behalf.

1. Licenses from Yield Software. Yield Software grants to you, during the Subscription Term (as defined in Section 5), Trial Period or the Fee Period as applicable, the nontransferable, nonexclusive, worldwide right to permit those individuals authorized by you or on your behalf, and who are your employees, agents or contractors (“Users”), to use the Services and any Yield Software Materials solely in connection with the Services, all solely for your own internal business operations for the domain(s) that you listed when you registered for the Yield Software Service (the “Registered Domain(s)”) and subject to the terms of the Agreement, including the online documentation for the Yield Software Service. Notwithstanding the foregoing, if you have registered with Yield Software as an “Agency,” your “Registered Domains” will include the domains of each of your customers on whose behalf you are using the Services (each, an “Agency Customer”); your “Users” may include employees of your Agency Customers who have agreed to be bound by this Agreement; and you may use the Services to provide services to each of your Agency Customers related to the Registered Domains. The rights granted to you in the Agreement are subject to all of the following agreements and restrictions: (i) you shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Services or the Yield Software Materials available, to any third party other than as permitted under the terms of the Agreement; (ii) you shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services or Yield Software Materials or access or use the Services or Yield Software Materials in order to build or support and/or assist a third party in building or supporting, products or services competitive to Yield Software; (iii) except as expressly stated herein, no part of the Services or Yield Software Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; (iv) you shall not disclose any review of the Services, including but not limited to the results of any performance tests, to any third party without Yield Software’s prior written approval; (v) you agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services; (vi) you may not access the Services if you are a direct competitor of Yield Software; and (vii) you acknowledge and agree that Yield Software or its Third Party Providers shall own all right, title and interest in and to all intellectual property rights (including all derivatives or improvements thereof) in the Services and the Yield Software Materials.

2. Trial Services and Free Services. You may order Trial Services or Free Services for the Yield Software Service or any other Service for which trial services or free services are offered. You may use Trial Services for trial purposes only. Trial Services and Free Services may have limited features and functionality compared to paid Services and may be changed by Yield Software at any time. You may not use the Trial Services or Free Services to provide or attend third party training on the content and/or functionality of such Services. The Trial Period will be the time period specified by Yield Software at the time that you sign up to receive the Trial Service. The Free Period has no fixed term and is subject to termination by Yield Software at any time. Upon lapse of the Trial Period or termination of the Free Services, your usage rights shall terminate. If you decide to use the Yield Software Service or any Other Service after the applicable Trial Period or Free Period, you must purchase such Service from Yield Software. You agree that the Trial Services and Free Services are provided “AS IS,” that Yield Software does not provide technical support or offer any warranties for the Trial Services or Free Services, and that Yield Software may, in its discretion and with or without cause, terminate the Trial Services or Free Services at any time, including prior to the end of any Trial Period.

3. Your Data. Yield Software will protect any data provided by you that resides in your Yield Software Service environment (“Your Data”) as confidential in accordance with Section 12. You acknowledge and agree that Your Data may be transferred or stored outside of the country or other jurisdiction where you and your Users are located, such as in connection with the provision of any Customer Care Services. In addition, you acknowledge and agree that it is your obligation to inform third parties of the use, processing, or transfer of Your Data and to ensure that such third parties have given their consent to such use, processing, and transfer as required by all applicable data protection legislation. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Your Data. Yield Software’s practices concerning the privacy of Your Data in connection with the Services is set forth in Yield Software’s Privacy Policy document available at http://www.yieldsoftware.com/privacy. Yield Software shall have the right to modify the Privacy Policy at any time in its sole discretion.

4. Billing and Payment. In consideration for Yield Software providing the Services, you shall pay to Yield Software all applicable fees billed to you by Yield Software in accordance with the Yield Software Pricing Information and/or monthly fees applicable to the Services and set forth for you at the Yield Software registration page. The sum of the amounts calculated in accordance with the Pricing Information and/or the monthly fees applicable to the Services are referred to herein as the “Fees.” If you have registered with Yield Software as an Agency, you will need to contact us at sales@yieldsoftware.com or 650-357-7100 in order to obtain pricing information, and you will be required to place an Agency Purchase Order with Yield Software before the commencement of Services. All fees due under the Agreement are non-cancelable and the sums paid are nonrefundable, except as otherwise specified herein. Yield Software’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. You will provide Yield Software with valid and updated credit card and complete and accurate billing and contact information in your user account (“User Account”) and to keep the information in your User Account updated. You agree that this Agreement can be used as your express permission to charge your credit card for the Fees as may be accrued through your use of the Services. You agree to immediately notify Yield Software if your credit card is lost or stolen or your credit card account otherwise becomes unavailable for any reason. Yield Software will automatically bill your credit card for the Fees accrued on your behalf for use of the Services. If you believe you are not responsible for any of the Fees in your credit card statement, or your account is otherwise incorrect you must contact us in writing within fifteen (15) days of the statement date. If Yield Software, in its discretion, permits you to make payment using a method other than a credit card, Yield Software will invoice you at the time it gives such permission and monthly thereafter. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice. If any payments are not received from you by the due date, then such overdue payments will accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If any amount owing by you is 30 or more days overdue (or 10 or more days overdue in the case of amounts you have authorized us to charge your credit card), we may, without limiting our other rights and remedies, accelerate your unpaid fee obligations so that all such obligations become immediately due and payable, and suspend our Services to you until such amounts are paid in full. Yield Software reserves the right to modify its Fees and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by email or via your user account, or other notification of modification to the Pricing Information applicable to you.

5. Term and Termination. . Except for Trial Services and Free Services, the term of the Yield Software Service or any recurring Consulting Services ordered by you shall commence upon the date of enablement of such Service, and shall continue for the period of time covered by the applicable Fee (the “Subscription Term”), and shall automatically renew for subsequent Subscription Terms at the then current specified Fees unless either party provides thirty (30) days advance written notice of termination to the other. In the event of any material breach of the Agreement by either party, the non-breaching party shall have the right to terminate the Services ordered hereunder for cause if such breach has not been cured within thirty (30) days of written notice from the non-breaching party specifying the breach. In addition, Yield Software may immediately suspend your password, account, and access to or use of such Services, (i) during such thirty (30) day cure period if the material breach involves your failure to make any payment due to Yield Software under the Agreement which you do not cure within the first ten (10) days of such 30 day cure period, or (ii) if you violate any provision within Section 1 or Section 17 of this Agreement. Any suspension by Yield Software of the Yield Software Service or any Consulting Services under the preceding sentence shall not excuse you from your obligation to make payment(s) under the Agreement. Upon any termination of any Services, your right to access and use such Service (including the Yield Software Materials) shall terminate. If Yield Software terminates any Services under this Section or under Section 11 below, you must pay within thirty (30) days all amounts which have accrued prior to such termination, as well as all sums remaining unpaid for Services received prior to such termination, plus related taxes and expenses. You agree and acknowledge that Yield Software has no obligation to retain Your Data and that Your Data may be irretrievably deleted after thirty (30) days following the termination of the applicable Service or if your account is thirty (30) days or more past due. The following provisions shall survive any termination of this Services Agreement: Section 5, 9, 10, 12, 17, 22, 23, 24 and 26.

6. Third Party Web Sites. If you enter into correspondence with, purchase goods or services from, or participate in promotions of advertisers or sponsors other than Yield Software through any of the Services, any such activity, and any terms, conditions, warranties or representations associated with such activity, is governed solely by the terms between you and the applicable third party. Yield Software shall have no liability or obligation for, and does not endorse or accept any responsibility for, the contents or use of third party web sites or any transactions completed with third parties. Yield Software may provide such links only as a convenience, and the inclusion of any link does not imply endorsement by Yield Software of the linked web site, notwithstanding the inclusion on such site of the trademarks of Yield Software or its Third Party Providers.

7. Customer Care Services. As part of the Services, Yield Software may provide you with Customer Care Services under Yield Software’s Customer Care Services Policies in effect at the time such Customer Care Services are provided.

8. Representations, Warranties & Exclusive Remedy. Each party represents and warrants that it has the power and authority to enter into the Agreement. Yield Software warrants that (a) the Yield Software Service and any Consulting Services that you order will perform substantially in accordance with its associated online documentation under normal use, and (b) the Services will be provided in a manner consistent with generally accepted industry standards. For any breach of the express warranties set forth in clauses (a) and (b) above, your exclusive remedy shall be for Yield Software, at its option, to either reperform or correct the deficient Service. You must notify Yield Software of any warranty deficiencies within 30 days from performance of the relevant Service in order to receive warranty remedies. The foregoing warranties do not apply to Trial Services or Free Services.

9. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 8 ABOVE, YIELD SOFTWARE AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS WITH REGARD TO THE YIELD SOFTWARE MATERIALS AND THE SERVICES INCLUDING BUT NOT LIMITED TO ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND QUALITY OF SERVICE. YIELD SOFTWARE AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY OR COMPLETENESS OF THE YIELD SOFTWARE MATERIALS OR THE SERVICES OR THE RESULTS YOU MAY OBTAIN BY USING THE YIELD SOFTWARE MATERIALS OR THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YIELD SOFTWARE AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES OR YIELD SOFTWARE MATERIALS WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL YOU PURCHASE OR OBTAIN THROUGH THE SERVICES WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGE THAT NEITHER YIELD SOFTWARE NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES AND YIELD SOFTWARE MATERIALS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. YIELD SOFTWARE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY YIELD SOFTWARE, THE SERVICES AND THE YIELD SOFTWARE MATERIALS ARE PROVIDED TO YOU ON AN “AS IS” BASIS.

10. Limitation of Liability. IN NO EVENT SHALL YIELD SOFTWARE OR THE THIRD PARTY PROVIDERS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, REGARDLESS OF CAUSE, WHETHER IN AN ACTION IN CONTRACT OR NEGLIGENCE OR OTHERWISE, EVEN IF YIELD SOFTWARE OR THE THIRD PARTY PROVIDER HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF YIELD SOFTWARE AND THE THIRD PARTY PROVIDERS FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, EXCEED THE GREATER OF (A) THE TOTAL AMOUNTS ACTUALLY PAID TO YIELD SOFTWARE BY YOU FOR THE APPLICABLE SERVICE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM OR (B) U.S.$100. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you.

11. Indemnities. If a third party makes a claim against either you or Yield Software (“Recipient”) which may refer to you or Yield Software depending upon which party received the Material), that any information, design, specification, instruction, software, data, or material (“Material”) furnished by either you or Yield Software (“Provider”) which may refer to you or Yield Software depending on which party provided the Material, and used by the Recipient infringes the third party’s intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by a court to the third party claiming infringement or any settlement agreed to by the Provider, if the Recipient does the following:

If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid for such Material. If you are the Provider and such return materially affects Yield Software’s ability to meet its obligations to you, then Yield Software may, at its option and upon 30 days prior written notice, terminate applicable Services. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or material not furnished by the Provider. Yield Software will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by Yield Software. Yield Software will not indemnify you for infringement caused by your actions against any third party if the Materials as delivered to you and used in accordance with the terms of the Agreement would not otherwise infringe any third party intellectual property rights. This section provides the parties’ exclusive remedy for any infringement claims or damages.

12. Confidential Information. Each party may have access to information that is confidential to the other party (“Confidential Information”). Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential. Confidential Information of Yield Software shall include the software programs provided as part of the Yield Software Service and the Yield Software Materials. Confidential Information of yours shall include Your Data. A party’s Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure and was not obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (iv) is independently developed by the other party without reference to the other party’s Confidential Information. Each party agrees to use reasonable care to prevent disclosure of the other party’s Confidential Information to any third party. Each party agrees to hold the other party’s Confidential Information in confidence for a period of three (3) years from the date of disclosure. Notwithstanding the foregoing, you acknowledge and agree that (1) Yield Software may disclose your Confidential Information to its Third Party Providers to the extent necessary to provide products or services under the Agreement, provided that Yield Software has a non-disclosure agreement in place with such Third Party Provider that protects such Confidential Information against disclosure in a manner no less protective than the Agreement, and (2) Yield Software’s obligations regarding personally identifiable information and other information concerning you and your Users shall be governed by the terms of the then-current Yield Software Privacy Policy available at http://www.yieldsoftware.com/privacy. Further, Yield Software may identify you on its customer lists and in its marketing and advertising materials, and announce that you are a customer of the Yield Software Service, and reproduce your company name, logo, trademark, trade name, service mark, or other commercial designations in connection therewith. This Section 12 constitutes the entire understanding of the parties and supersedes all prior or contemporaneous agreements, representations or negotiations, whether oral or written, with respect to Confidential Information.

13. Your Responsibilities. You will ensure that any use of the Services by you and your Users is in accordance with the terms and conditions of the Agreement, and you shall be responsible for any breach by any User of such terms and conditions. In addition, you will obtain any consents required for Yield Software and its Third Party Providers to perform the Services under the Agreement. You are responsible for ensuring that your network and systems comply with specifications that Yield Software provides. Yield Software is not responsible for your network connections or for conditions or problems arising from or related to your network connections (e.g., bandwidth issues, excessive latency, network outages), or caused by the Internet.

14. Customer Advertising Accounts.

14.1 Customer Advertising Account Access. The Yield Software Service is designed to allow you to manage certain advertising campaigns through your User Account and accounts you establish with third party advertising companies. You agree to allow Yield Software to automatically retrieve data from and transmit data and instructions to any and all advertising accounts for which you enter the necessary login data into the Yield Software Service (“Customer Advertising Accounts”). You represent and warrant that you have the permission, authority and rights to allow Yield Software to automatically access such Customer Advertising Accounts. You agree that Yield Software is not responsible for any liability associated with accessing and retrieving data from Customer Advertising Accounts on your behalf or on behalf of any entity for which you create a Customer Advertising Account. You agree to immediately disable access in your User Account to any Customer Advertising Account for which you do not have full legal right of access. You represent and warrant that you have reviewed and agree that you are solely responsible for complying with any and all terms, conditions and policies that apply to your interactions with any third party advertising provider through any Customer Advertising Account or the Yield Software Service. You shall indemnify and hold Yield Software, its officers, directors, employees, shareholders, agents, affiliates, licensors and subcontractors harmless from any claim, costs, losses, damages, liabilities, judgments and expenses (including reasonable fees of attorneys and other professionals whether or not suit is brought), arising out of or in connection with any claim, action or proceeding (any and all of which are “Claims”) arising out of or related to any act or omission by you in using the Service, the Customer Advertising Accounts, or related to the development, operation, maintenance, use and contents of any Customer Advertising Account campaign, including but not limited to any infringement of any third party proprietary rights. At Yield Software’s option, you shall assume control of the defense and settlement of any Claim subject to indemnification by you (provided in such event, Yield Software may at any time thereafter elect to take over control of the defense and settlement of any such Claim, and in any event, you shall not settle any such Claim without Yield Software’s prior written consent).

14.2 Customer Beware. You acknowledge that Yield Software does not own, control or operate the Customer Advertising Accounts, and that the provision of third party advertising is pursuant to an agreement between you and such advertising provider. You understand and agree that data made available through the Yield Software Service is dependent upon such third party providers, and is subject to errors in creation, Transmission (as defined in Section 15 below), data loss, time delay and other factors beyond Yield Software’s control. You understand and agree that the third party advertising provider and your Customer Advertising Account as accessed directly through such provider, and not through Yield Software, is the only information upon which you are entitled to rely with respect to modifications or data related to an advertising campaign. Yield Software provides any such data accessed from a third party system for your convenience only, and does not make any representation or warranty as to its accuracy or timeliness. Any recommendations, projections, forecasts, extrapolations, suggestions, or other summaries provided by Yield Software, whether forward or backward looking or based upon current circumstances are nothing more than the opinion of Yield Software based upon the best information Yield Software was able to access from such third party provider and based upon the time at which such data was Transmitted to Yield Software (which may not be current at the time you view it). You agree not to rely on such opinions in making any advertising management decisions without first verifying the accuracy to your satisfaction directly through your Customer Advertising Account. The Yield Software Service also comprises compilations of data from various third party advertising providers. Neither the individual Customer Advertising Account data, nor the compilation nor comparison data is guaranteed by Yield Software in any way and you agree it is your duty to verify such data prior to making campaign management decisions or transmitting instructions to your Customer Advertising Accounts. Yield Software cannot be responsible for the speed, accuracy or completeness of the instructions you transmit to your Customer Advertising Accounts through the Yield Software Service because Yield Software does not own, operate or control all portions or the network or software through which such transactions are processed. You therefore agree that your Customer Advertising Account is the only reliable source to verify that your management decisions are carried out as accurately and completely as the third party advertising provider’s system allows. You are responsible to inform Yield Software immediately as soon as you identify any discrepancies between your Customer Advertising Account and your User Account.

14.3 No Guaranteed Access. You acknowledge and agree that the availability of the Yield Software Service, as well as any third party advertising provider services (including but not limited to Google AdWords, Yahoo Search Marketing, and Microsoft adCenter) and the terms upon which all of the foregoing are available are continually under experimentation and development. You acknowledge and agree that this Agreement and your use of the Yield Software Service do not create any estoppel, or other rights to continued access, and you hereby waive and agree not to assert any such claims under contract law or any other legal theory against Yield Software or the third party advertising providers you access through the Yield Software Service. You acknowledge and agree that Yield Software may suspend or terminate your access to the Yield Software Service or to any of the third party advertising providers through the Yield Software Service, or change any of the specifications, protocols or methods of access, at any time, for any reason, or for no reason, and will bear no liability for such decisions. It is solely your responsibility at all times to backup your data and to be prepared to manage your Customer Advertising Accounts and conduct your business without access to the Yield Software Service or any particular feature or set of features or third party access therein. Yield Software does not represent or warrant, and specifically disclaims, that the Yield Software Service or any third party advertising provider data or data in your User Account or your Customer Advertising Account will be available without interruption or without bugs.

14.4 Account Monitoring. You agree that Yield Software or third party advertising providers with whom Yield Software has a relationship may, but have no duty to, monitor any User Account activity for the purpose of ensuring quality, improving Yield Software Service, and compliance with this Agreement and the terms Yield Software or its affiliates may have with third parties. You shall not try to interfere with such monitoring and agree that Yield Software or its third party licensors may use technical means to overcome any attempted interference.

14.5 Ownership of Aggregated Information. You acknowledge and agree that (i) Yield Software may collect information on the use, contents, performance or management of any advertising campaign conducted through a User Account or group of such User Accounts, whether or not owned by the same customer, (ii) as part of providing the Yield Software Service, Yield Software may aggregate reports comprised of such data, extrapolate reports based on such data, or create programs, algorithms or recommendations based upon its observations with respect to such aggregated data (collectively the “Aggregated Data”), and (iii) individual data items cannot be separated out from the aggregated data once aggregated into the Aggregated Data. You acknowledge and agree that Yield Software is and shall be the exclusive owner of such Aggregated Data and that, except as specifically agreed to by Yield Software, you shall have no right to access such Aggregated Data, nor shall you be entitled to copies of such Aggregated Data. In the event of a termination of your User Account, any Customer Advertising Account or this Agreement, such Aggregated Data shall remain the exclusive property of Yield Software. By this Agreement and the Privacy Policy, you consent to Yield Software’s use of such Aggregated Data in whatever manner Yield Software may in its discretion choose, provided that such Aggregated Data shall not contain personally identifiable information (except in aggregated generic form) to you or your User Account without your express permission. By submitting data through your User Account to the Yield Software Service, you hereby grant to Yield Software a worldwide, irrevocable, non-exclusive, transferable and sublicensable, fully paid-up, and royalty-free license to use, display, reproduce, distribute and analyze your User Account data within the Yield Software Service in any format and through any applicable channels for the purposes of providing the applicable features and functionality of the Yield Software Service and improving the Yield Software Service’s look, feel and function, and to develop additional or modified features and functionality. This license does not grant Yield Software the right to use your User Account data for any other commercial purpose without your prior written consent.

15. Transmission of Data. You understand that the processing and transmission of your transactions, communications and other instructions (collectively “Transmissions”) are fundamentally necessary to your use of the Yield Software Service and consent to Yield Software’s interception, storage and access to such Transmissions. You also understand that such Transmissions will involve communication over the Internet and over various networks which are not owned or controlled in whole by Yield Software and that changes to your Transmissions may occur in order to conform and adapt such Transmission data to the technical requirements of connecting networks or devices. You further understand that Transmissions may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. You agree that Yield Software is not responsible for any Transmission which is lost, altered, intercepted or stored without authorization during the movement of any data across networks not owned or controlled and operated by Yield Software. You acknowledge that functionality may be available in your Customer Advertising Account which is not available through the Yield Software Service. You agree that you remain responsible for checking, updating or otherwise transacting through your Customer Advertising Account to ensure accurate Transmissions of data.

16. Notices. Yield Software may give notice applicable to Yield Software’s general customer base by means of a general notice in the applicable Service and notices specific to you by electronic mail to your e-mail address on record in Yield Software’s account information or by written communication sent by first class mail or pre-paid post to your address on record in Yield Software’s account information. If you have a dispute with Yield Software or you wish to provide a notice under the Agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: Yield Software, Inc., 1700 S. Amphlett Blvd., #202, San Mateo, California, United States, 94402, Attention: General Counsel, Legal Department.

17. Restrictions on Use. You agree not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded under the Agreement, Yield Software reserves the right to remove or disable access to any material that violates the foregoing restrictions. Yield Software shall have no liability to you in the event that it takes such action. You agree to defend and indemnify Yield Software against any claim arising out of a violation of your obligations under this section.

18. Verification. At Yield Software’s written request, but not more frequently than annually, you shall furnish Yield Software with a document signed by your authorized representative verifying that the Services are being used pursuant to the provisions of this Agreement. You agree to provide such information and documents reasonably requested by Yield Software with respect to your use of, and payment of fees for, the Services. If the verification described in this section reveals that you have underpaid fees to Yield Software, you shall promptly pay to Yield Software such fees. You are responsible for implementing reasonable means to monitor your compliance with the terms of the Agreement.

19. Export. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services, the Yield Software Materials and any services deliverables. You agree that such export control laws govern your use of the Services, the Yield Software Materials and any services deliverables (including technical data), and you agree to comply with all export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

20. Force Majeure. Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than thirty (30) days, either party may cancel unperformed services upon written notice. This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the Services provided.

21. Services Tools. Yield Software may use tools, scripts, software, and utilities (collectively, the “Tools”) to review and administer the Services, and to help resolve your service requests. The Tools will not collect, report or store any of Your Data residing in the Services, except as necessary to troubleshoot service requests or other problems in such Service. Data collected by the Tools (excluding production data) may also be used to assist in managing Yield Software’s product and service portfolio and for license management.

22. Changes. Yield Software may change the terms of this Agreement from time to time at its sole discretion. When these changes are made, Yield Software will notify you by making a new copy of the Services agreement available at the Site and any new Additional Terms will be made available to you from within, or through, the affected Service. Yield Software may require you to consent to the updated Agreement in a specified manner before further use of the Services is permitted. Yield Software will notify you about a change to this Agreement (e.g., by email). If you do not object to the changed Agreement within thirty (30) days of receipt of such notification, the changed Agreement will become effective. Otherwise your continued use of the Site or any affected Service constitutes acceptance of the changes. Your use of the Site and Services is subject to the most current version of the Agreement posted on the Site, or within or through the affected Service, at the time of such use. Please regularly check the Site to view the then-current Terms.

23. Ownership. The Site, Services and Yield Software Materials, and their selection and arrangement, are protected by copyright, trademark, trade dress, patent, trade secret, unfair competition, and other intellectual and proprietary rights (the “Intellectual Property Rights”). Except as expressly provided in this Agreement, Yield Software and Third Party Providers do not grant any express or implied rights to use the Site, Services or Yield Software Materials. The trademarks, logos and service marks displayed on the Site (the “Marks”) are the property of Yield Software or third parties. You are not permitted to use the Marks without the prior written consent of Yield Software or the third party that may own the Marks.

24. Feedback. By submitting ideas, suggestions, documents and/or proposals (“Feedback”) to Yield Software through its suggestion, feedback, wiki, forum or similar web pages, you agree that (i) your Feedback does not contain the confidential or proprietary information of third parties, (ii) Yield Software is not under any obligation of confidentiality, express or implied, with respect to the Feedback, (iii) Yield Software, in its discretion, shall be entitled to use and disclose such Feedback for any purpose, in any way, in any media worldwide, (iv) Yield Software may have something similar to the Feedback already under consideration or in development, (v) the Feedback automatically becomes Yield Software’s property without any obligation to you, and (vi) you are not entitled to any compensation or reimbursement of any kind from Yield Software under any circumstances.

25. International Users. This Site can be accessed from countries around the world and may contain references to Services that are not available in your country. These references do not imply that Yield Software intends to announce such Services in your country. This Site is controlled, operated and administered by Yield Software from its offices in the United States of America. Yield Software makes no representation that the Site, the Services, or the Yield Software Materials are appropriate or available for use at locations outside the United States and access to the Site from jurisdictions where the Site, Services or Yield Software Materials are illegal is prohibited. If you access the Site from a location outside the United States, you are responsible for compliance with local laws.

26. General provisions. Any action related to the Agreement will be governed by California law and controlling U.S. federal law. The Uniform Computer Information Transactions Act, the United Nations Convention on the International Sale of Goods, and choice of law rules of any jurisdiction, will not apply to the Agreement. Any disputes, actions, claims or causes of action arising out of or in connection with the Agreement shall be subject to the exclusive jurisdiction of the state courts of Santa Clara, San Mateo or San Francisco counties, California, and the federal courts of the Northern District of California. This Agreement and the information which is incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy, together with any Additional Terms, represents the parties’ entire understanding relating to the Services and the Yield Software Materials, and supersedes any prior or contemporaneous, conflicting or additional, communications. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Yield Software and you as a result of the Agreement or use of the Services. You may not assign the Agreement without the prior written approval of Yield Software. Any purported assignment in violation of this section shall be void. Yield Software reserves the right to provide some or all of the Yield Software Materials or Services from locations, and/or through use of Third Party Providers, worldwide. The failure of either party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Except for actions for nonpayment or breach of Yield Software’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than two years after the cause of action has accrued. Any rights not expressly granted herein are reserved by Yield Software.

© Copyright 2007-2010 Yield Software, Inc All Rights Reserved.