VisitorTrack API Evaluation Terms of Service

NETFACTOR TERMS OF SERVICE FOR API EVALUATION

This Data Services Agreement (the “Agreement”) is made and entered into by and between NETFACTOR CORPORATION (“netFactor”), a Colorado corporation with its principal offices at 6041 S. Syracuse Way, Suite 100, Greenwood Village, CO 80111 and Customer named above (“API Customer”), each a “Party” and collectively the “Parties”), effective with the submission date of this form (the “Effective Date”).

WHEREAS, netFactor provides a service via API providing appending of certain record and business data for the IP Addresses (the IP’s) which are submitted by the API Customer, and/or the web pages tracked by the VisitorTrack javascript page tag, both which are made available via API services (the “API Service”); and

WHEREAS, API Customer seeks to evaluate the returned information services for potential commercial application (“API Customer Application”) to its current, former or pending users (“API Customer End-User”); and where the data supplied during the evaluation shall not be utilized in a commercial form.

NOW THEREFORE, in consideration of the mutual covenants contained herein, API Customer and netFactor hereby agree as follows:

1) Definitions. Capitalized terms used in this Agreement, and not otherwise defined herein, shall have the following specified meanings:
1.1) “API Service” means the API Applications owned & operated by netFactor which provides record information for IP Addresses and which is made available to API Customer through an Application Programming Interface (“API”).
1.2) “netFactor javascript” means the specific javascript which may be used for web tracking provided by netFactor to API Customer that may be placed within one or more API Customer and/or API Customer End-User websites and which if appropriately placed will deliver additional website visitor intelligence for processing by API Services
1.3) “API Customer End-User” denotes those customers, partners, prospects, affiliates, users, or any party to which the API Customer provides access to the record data which is provided to the API Customer.
1.4) “API Customer Website” means any website owned and operated by API Customer, an API Customer End-User, and/or any other related, syndicated or affiliated websites where the netFactor javascript may be placed.
1.5) “IP Records” denote each individual record which is submitted to the API Service, and which is based upon an individual I.P. Address.
1.6) “IP Queries” are each individual I.P. Address which may be submitted to the API Service. This includes the count of those queries which the API Customer has elected to purchase, and which is held on account for their usage.
1.7) “Page Views” denote each page upon which the netFactor javascript is placed and for which record data are obtained.

2) Data Access.
2.1) Access Rights. netFactor hereby grants to API Customer a non-exclusive, non-transferable, limited worldwide right for the Term to use and evaluate the API Service in the intended manner, provided, however, that API Customer and all API Customer End-Users are subject to the evaluation license terms agreed to by an authorized netFactor representative. Under no circumstances may the data provided by an evaluation license be made available to any third party under any commercial terms.
2.2) Restrictions. API Customer shall not (i) permit any third party to access the API Services except as permitted herein, (ii) copy, frame or mirror any part or content of the API Services, other than copying or framing within API Customer’s own application as allowed herein, (iii) reverse engineer the API Service, or (iv) access the API Service in order to (a) build a competitive product or service, or (b) copy any content, features or functions of netFactor Services.
2.3) Malicious Code. API Customer may not intentionally or accidentally transmit code to netFactor that contains viruses, worms, time bombs, Trojan horses and any other harmful or malicious code files, scripts, agents or programs.
2.4) Delivery. netFactor shall deliver the API Service in accordance with the manner and terms of its commercial delivery as provided to other customers.
3) Term and Termination.
3.1) Term. This Agreement shall commence upon the Effective Date and shall continue for a period as determined by the evaluation license terms granted by an authorized netFactor representative.
3.2) netFactor Termination. netFactor may terminate this evaluation Agreement immediately and without further obligation in the event API Customer may violate any of the terms of this agreement, and/or exceeds the limits of the evaluation license for which API services are provided.
3.3) Assignment. Neither Party will assign this Agreement in whole or in part to any third party without the prior written consent of the other Party; provided, however, either Party may assign the Agreement without such consent to any successor by way of any merger, consolidation or other corporate reorganization of such Party or sale of all or substantially all of the assets of such Party or to an entity that assumes, by sale, license or otherwise, the business activities that are the subject of this Agreement, provided that such successor assumes or is otherwise fully bound by all of the obligations of the assigning Party under the Agreement.

3.4) Obligations. Upon expiration or termination of this Agreement:
a) Each Party shall promptly return to the other all of the Confidential Information of the other Party in its possession or control;
b) API Customer shall cease all use of the netFactor Marks and API Service; and
c) API Customer shall delete all data received through the API Service and which is incorporated within its API Customer Application, databases, and work product as soon as possible within thirty days (30) days of the expiration of the evaluation period, but in no case later than forty-five (45) days following the expiration date of the evaluation period.

4) Compliance with Law. API Customer assumes sole responsibility for its knowledge of, and compliance with, all laws that may be applicable and acknowledges that it is solely responsible for the manner and purpose for which API Customer, the API Customer End-Users and any other recipients who may utilize or receive data originating from the API Service and, in case of any violations, shall indemnify netFactor.
5) Limited Warranties. NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT, WITH RESPECT TO (A) ITS RESPECTIVE WORLD WIDE WEB SITES, ITS VARIOUS PRODUCTS AND SERVICES, OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF, OR (B) ANY CONTENT, SOFTWARE, USAGE STATISTICS, OR OTHER MATERIALS OR INFORMATION PROVIDED TO THE OTHER PARTY. THE API SERVICE IS PROVIDED TO API CUSTOMER AND API CUSTOMER END-USERSON AN “AS IS” BASIS AND NETFACTOR SPECIFICALLY DOES NOT WARRANT ITS ACCURACY OR COMPLETENESS. FURTHERMORE, NETFACTOR SHALL NOT BE RESPONSIBLE FOR ANY FAILURE TO REMOVE, OR DELAY IN REMOVING, HARMFUL, INACCURATE, UNLAWFUL, OR OTHERWISE OBJECTIONABLE CONTENT ORIGINATING WITH OR OTHERWISE PROVIDED BY THIRD PARTIES. NETFACTOR SHALL UTILIZE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE THE API SERVICE, BUT SHALL NOT BE RESPONSIBLE FOR ANY UNINTENTIONAL DISRUPTION IN API CUSTOMER’S OR API CUSTOMERS SUBSCRIBERS’ ACCESS TO THE API SERVICE.