Terms of Service

1. ACKNOWLEDGEMENT AND ACCEPTANCE OF TERMS OF SERVICE
The Website Application Monitoring Service ("Service"), owned and operated by Webmetrics, San Diego, CA, is provided to ("Member") under the terms and conditions of these Webmetrics Terms of Service (TOS) and any operating rules and policies that may be published by Webmetrics. The TOS comprises the entire agreement between Member and Webmetrics and supersedes all prior agreements between the parties regarding the subject matter contained herein.

2. DESCRIPTION OF SERVICE
Webmetrics is to monitor one or more web based applications or websites on behalf of Member and notify Member if certain events occur during the monitoring process. Events for which notifications are sent are to be defined by Member as part of Member account maintenance. Notifications are sent by either email, or pager email. Performance reports and log data are maintained at Webmetrics, for review by the Member. The Member must: (1) Supply information required to set up the account and information on the application that is to be monitored; (2) Test data which must be submitted to the aforementioned application; (3) Provide for own access to the World Wide Web and pay any telephone service fees associated with such access.

If any information provided by Member is inaccurate, Webmetrics retains the right to terminate Member's membership and right to use the Service.

3. MEMBER REPRESENTATIONS
The Member affirms, for any application or website tested by the Service through his account, that he is the legal owner of the website which the application runs, an employee of the legal owner of the domain, or has obtained express written permission from the legal owner of the domain for use of the Service in testing the domain. Member expressly agrees to indemnify Webmetrics from any claims by a third party arising from use of the Service in testing a website application.

4. RIGHT OF ACCESS
Member grants Webmetrics permission to download files from any website monitored by the Service as part of Member account services. Member understands that operation of the Service will involve repeated access by the Service to any website for which the Member's application runs as part of Member's account services.

5. COMPENSATION FOR SERVICE
In consideration of this Service, Member agrees to: (1) Pay Webmetrics an account setup fee if applicable; (2) Pay on a quarterly basis for each site or application monitored. Webmetrics shall notify Member of any change of service rates. Member will not experience any rate changes during initial contract term. Webmetrics may waive any portion of the service fee as part of a promotion or discount.

Unless prior written arrangement has been made between Member and Webmetrics, Member shall be billed on a quarterly basis for use of Service, with remittance being due within 30 days of posting (NET30).

6. SERVICE LEVEL AGREEMENT ("SLA")
Subject to the additional terms and conditions of this TOS, if during any one (1) month period Webmetrics fails to monitor any one or more of Member's accounts for a period of one (1) hour, Member will be credited an amount equal to one (1) month of Service for the affected account(s). Accounts must be active (toggled on) and the monitoring interval must be set at no greater than one hour to qualify for credit. Webmetrics will disclose to Member all incidences where the SLA is not met. Member must submit a request for credit to Webmetrics in writing.

7. WARRANTIES
Except as otherwise expressly provided in Section 6 above with respect to Webmetrics SLA, Webmetrics makes no other express warranties (and any implied warranties are hereby disclaimed).

8. MEMBER ACCOUNT, PASSWORD, AND SECURITY
As part of account setup, you will select an account name and password. You are entirely responsible if you do not maintain the confidentiality of your password or account. If you learn that your password has been compromised, you must notify Webmetrics in a timely manner of any known breach of security. Password data is communicated over industry standard SSL during account login and and is encrypted on disk.

9. MODIFICATIONS TO TERMS OF SERVICE
Webmetrics may change the terms and conditions of the TOS from time to time. Member will be notified in writing if any such changes occur.

10. MODIFICATIONS TO SERVICE
Webmetrics reserves the right to modify or discontinue the Service with or without prior notice to Member. Webmetrics shall not be liable to Member or any third party should Webmetrics exercise its right to modify or discontinue the Service.

11. TERMINATION
Either Member or Webmetrics may terminate the Service without cause at any time following conclusion of the initial Service Agreement term, contingent upon receipt by either party of 30-day advance notice of the final termination date. Webmetrics shall not be liable to Member or any third party for termination of Service. Webmetrics will only consider cancellation to be in process for those members that have submitted the official Webmetrics Cancellation Form. You may obtain the official cancellation form by calling sales at 877.524.8299 x2.

Upon termination of the Service, Member's right to use the Service immediately ceases. Member shall have no right and Webmetrics shall have no obligation thereafter to forward any monitoring data associated with Member's account. Upon termination of the Service, Member remains liable for charges accrued in the current month, up to and including the day of termination, and for any outstanding charges from previous months.

12. SUSPENSION OF SERVICE
Webmetrics reserves the right to suspend the Service due to lack of payment. Webmetrics will give at least 10 days notice before suspension due to lack of payment.

13. NO RESALE OF SERVICE
Member's right to use the Service is personal to Member. Member may be an individual, a corporation, or other legal entity. Member agrees not to resell or make any commercial use of the Service without the express written consent of Webmetrics.

14. LIMITATION OF LIABILITY
(a) Webmetrics shall not be liable for any direct, indirect, incidental, special, consequential, or punitive damages resulting from the use of the service or the inability to use the service, or for cost of procurement of substitute services, or resulting from unauthorized use of the member's account or account information or data, including but not limited to, damages for loss of profits, use, data or other intangibles.

(b) Each party acknowledges that the Internet (including the World Wide Web) is a network of private and public networks and that Webmetrics has no control over the Internet. In no event shall Webmetrics be liable for discontinuance of operation or possible regulation of the Internet, which might restrict or prohibit the operation of the Service.

15. INDEMNIFICATION
Member agrees to indemnify and hold Webmetrics, its officers, employees and supporting contractors, harmless from any claim or demand, including attorney's fees, made by any third party due to or arising out of Member's use of the Service, the violation of this TOS by Member, or the infringement by Member, or other user of the Service using Member's computer, of any property or other right of any person or entity. Webmetrics agrees to indemnify and hold Member, its officers, employees and supporting contractors, harmless from any claim or demand, including attorney's fees, made by any third party due to or arising out of Member's use of the Service, the violation of this TOS by Member, or the infringement by Member, or other user of the Service using Member's computer, of any property or other right of any person or entity.

16. PROPRIETARY OF RIGHTS TO CONTENT
Member acknowledges that content, including but not limited to text, software, graphics or other material presented to Member as part of the Service ("Content") by Webmetrics, is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws; therefore, Member is only permitted to use this Content as expressly authorized by Webmetrics. Member may not copy, reproduce, distribute, or create derivative works from this Content without expressly being authorized to do so by Webmetrics.

17. LAWS
The TOS shall be governed by and construed in accordance with the laws of the state of California, excluding its conflict of law provisions.

Member and Webmetrics agree to submit to the exclusive jurisdiction of the state of California.

If any provision of the TOS is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect.

Webmetrics' failure to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Webmetrics in writing.

Member and Webmetrics agree that any cause of action arising out of or related to this Service must be filed in the Circuit Court of San Diego County, California within six (6) months after the cause of action; otherwise it is agreed that such cause of action is permanently waived and the parties charged shall be forever released of all liability.

18. PUBLICITY
Member grants Webmetrics limited permission to use its' name and logo. Both parties agree that the publicity consent under this terms of service is limited to Webmetrics referencing the Member as a customer on its web site, and that any additional publicity surrounding the Member/Supplier relationship, including but not limited to press releases, case studies, and advertising, will require written permission from the Member.

The section titles of the TOS are solely used for convenience of the parties and have no legal or contractual significance.