Google Analytics Provisioning API Program Agreement

Last modified: May 28, 2014

This Google Analytics Provisioning API Program Agreement ("Agreement") is entered into by Google Inc. ("Google") and the entity accepting this Agreement ("Company")”). This Agreement governs Company’s participation in Google’s Analytics service ("Google Analytics") Provisioning API Program (the "Provisioning Program") and will be effective as of the date accepted by Company (the "Effective Date").

1. Provisioning Program.

Company will promote Google Analytics to its current and prospective customers whose businesses are located in the Territory ("Customers"), in compliance with the terms and conditions of this Agreement and the Google Analytics Provisioning API Program Policies available at https://developers.google.com/analytics/terms/branding-policy (as modified from time to time, the ("Provisioning Program Policies"). "Territory" means worldwide excluding China, Cuba, Iran, Myanmar, North Korea, Sudan, Syria and any other country falling under U.S. export control regulations. Google reserves the right to reduce the Territory if Google in its sole discretion deems necessary for legal or compliance reasons. All promotion of Google Analytics by Company to Customers must require Customers to sign up for Google Analytics in accordance with the applicable Google Analytics terms and conditions located at http://www.google.com/analytics/terms (as modified from time to time, the "Analytics Terms") Company is prohibited from: (a) charging any fees to Customers in connection with Company’s promotion of Google Analytics, (b) accessing Customer's Google Analytics account or data unless Company has Customer's express consent to do so and (c) promoting Google Analytics to any entity that does not have a principal place of business within the Territory.

2. Brand Features.

Each party will own all right, title and interest to trade names, trademarks, service marks, logos and domain names it secures from time to time ("Brand Features"). Subject to the terms and conditions of this Agreement, Google grants to Company a nonexclusive and non-sublicensable license during the Term (as defined below) to display Google's Brand Features solely for the purpose of complying with Company's obligations under the Agreement. With respect to any use of Google’s Brand Features by Company, Company agrees to adhere to Google's then current brand feature use guidelines located at www.google.com/permissions. Subject to the terms and conditions of the Agreement, Company grants to Google and its affiliates a nonexclusive and non-sublicensable license during the Term to display Company's Brand Features solely for the purpose of complying with Google's obligations, if any, under the Agreement.

3. Restrictions.

Company will not, and will not allow any third party to: (a) "frame," minimize, remove or otherwise inhibit the full and complete display of any Google web page, (b) cause any hyperlinks to web pages on the Google web site to create a new browser window, (c) alter the Google Analytics sign-up flow designed by Google, (d) integrate any features or functionality of Google Analytics into Company’s products or services, (e) mimic Google’s visual identity in any way, (f) otherwise display Google web pages or Google content in a distorted or diluted fashion or (g) represent itself as an agent of Google.

4. Term; Termination.

This Agreement will continue from the Effective Date until terminated by either party as provided herein ("Term") Google may add to, delete from or modify this Agreement at any time without liability. The modified Agreement will be posted at https://developers.google.com/analytics/terms , or any other URL that Google may provide from time to time. Customer should look at this Agreement regularly. The changes to the Agreement will not apply retroactively and will become effective 7 days after posting. However, changes specific to new functionality or changes made for legal reasons will be effective immediately upon notice. Either party may terminate the Agreement with or without cause at any time with notice to the other party. Upon any termination or expiration of this Agreement, all licenses granted will terminate and Company will promptly cease use of any Google Brand Features. Sections 2, 3, 4, 5, 6 and 9 will survive expiration or termination of this Agreement.

5. Confidentiality; Publicity.

(a) "Confidential Information" means information that one party discloses to the other party under this Agreement that is marked as confidential or would normally be considered confidential information under the circumstances. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, or that was lawfully given to the recipient by a third party. (b) Neither party may disclose the terms or conditions of this Agreement (except as required by law) or make any public statement regarding the relationship contemplated by this Agreement. Company may not disclose to any third party (except Company's professional advisors under a strict duty of confidentiality or as necessary to comply with law) the terms, conditions or existence of any non-public aspect of the Provisioning Program. For the avoidance of doubt, the existence of the Provisioning Program will be considered Confidential Information of Google.

6. Disclaimers; Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY DISCLAIMS AND EXCLUDES ALL IMPLIED WARRANTIES, CONDITIONS, TERMS, REPRESENTATIONS AND UNDERTAKINGS INCLUDING WITHOUT LIMITATION FOR NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PROVISIONING PROGRAM IS PROVIDED "AS IS" AND AT COMPANY'S AND CUSTOMER'S OPTION AND RISK AND GOOGLE DOES NOT GUARANTEE ANY RESULTS OR MAKE ANY REPRESENTATIONS, WARRANTIES, CONDITIONS, TERMS OR UNDERTAKINGS ABOUT THE GOOGLE ANALYTICS SERVICE. EXCEPT FOR (I) BREACHES OF ANY INTELLECTUAL PROPERTY RIGHTS RELATING TO THE SERVICES PROVIDED HEREUNDER, (II) BREACHES OF SECTION 5, AND (III) INDEMNIFICATION AMOUNTS UNDER SECTION 7, TO THE FULLEST EXTENT PERMITTED BY LAW REGARDLESS OF THE THEORY OR TYPE OF CLAIM: (A) NO PARTY MAY BE HELD LIABLE UNDER THE AGREEMENT OR ARISING OUT OF PERFORMANCE OF THE AGREEMENT FOR ANY DAMAGES, LOSSES OR EXPENSES OTHER THAN DIRECT DAMAGES, EVEN IF THE PARTY IS AWARE OR SHOULD KNOW THAT SUCH DAMAGES, LOSSES OR EXPENSES ARE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY AND (B) NO PARTY MAY BE HELD LIABLE FOR DAMAGES UNDER THIS AGREEMENT IN THE AGGREGATE OF MORE THAN $50,000.

7. Indemnification.

Company will defend, indemnify and hold harmless Google, its agents, affiliates, and licensors from any third party claim or liability arising out of: (a) Company's participation in the Provisioning Program, (b) Company's web site(s), Company’s products and services, Company Brand Features and Google's use of any Company content (provided that such use complies with the requirements of this Agreement) and (c) Company's breach of the Agreement.

8. Representations and Warranties.

Company warrants that Company will (a) use all information provided by Google (including without limitation the Google Brand Features) and conduct all activities in connection with the Agreement in accordance with applicable law and (b) clearly and conspicuously display the URL for the Analytics Terms provided by Google in all Customer promotions.

9. Miscellaneous.

(a) Governing Law. ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING CALIFORNIA'S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.

(b) Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, the parties have relied solely on the express statements in this Agreement.

(c) Notices. All notices of termination or breach must be in writing and addressed to the other party's Legal Department. The email address for notices being sent to Google's Legal Department is legal-notices@google.com. All other notices must be in writing and addressed to the other party's primary contact. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).

(d) No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement. If any provision of the Agreement is found unenforceable, the balance of the provisions will remain in full force and effect.

(e) Assignment; Change of Control. Company will not assign or otherwise transfer its rights or delegate its obligations under the Agreement, in whole or in part, and any attempt to do so will be null and void. If a party experiences a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (i) that party will give written notice to the other party within 30 days after the change of control, and (ii) the other party may immediately terminate this Agreement any time between the change of control and 30 days after it receives that written notice.

(f) No Third Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.

(g) No Agency. This Agreement does not create any agency, partnership, or joint venture between the parties

(h) Severability. If any term (or part of a term) of this Agreement is invalid, illegal or unenforceable, the rest of the Agreement will remain in effect.

(i) Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.