Terms & Condition

This e-MARKETER® Terms of Subscription Service (the “Agreement”) constitutes a legal, binding agreement between e-MARKETER and you with respect to the Service defined below.

BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM, A QUOTE, A PURCHASE ORDER OR SIMILAR ORDER DOCUMENT THAT REFERENCES THIS AGREEMENT, OR BY USING THE SERVICE, YOU AGREE TO THIS AGREEMENT AND ALL OF ITS TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT, YOU DECLARE THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT. IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU CANNOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE. YOU MAY NOT USE OR ACCESS THE SERVICE IF YOU ARE OUR DIRECT COMPETITOR, OR ON BEHALF OF A DIRECT COMPETITOR OR IF YOU REPRESENT A DIRECT COMPETITOR, OR ACCESSING OR USING THE SERVICE FOR THE BENEFIT OF ONE OF OUR DIRECT COMPETITORS. IN ADDITION, YOU MAY NOT ACCESS OR USE THE SERVICE FOR PURPOSES OF MONITORING ITS AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.

1. MEMBER ACCOUNT, PASSWORD, AND SECURITY
To register for the Service, you will be required to register and create an online account which will be used to manage your use of the Service hereunder (“Account”). All information required during the Account set-up process must be provided, and be complete and accurate in all respects. You must keep your Account and password confidential. You are solely responsible for any and all activity initialised through your Account. You agree to immediately notify e-MARKETER of any unauthorised use of your Account. From time to time, e-MARKETER’s personnel will log in to the Service under your Account and access and use Client Data (defined below) and other information in your Account in order to provide, maintain, support or improve Service.

2. SUBSCRIPTION SERVICE
Subject to the terms and conditions of this Agreement and during the Term (as defined in Section 16 below), e-MARKETER shall make the Service available to you via the Service login page. As used herein, “Service” shall mean all e-MARKETER online Web-based software as a service specified on the e-MARKETER generated order documentation (“Quote”) provided to you, or your purchase order documentation, and includes any additional capacities, features or functionalities subsequently purchased by you that augment or enhance the Service (“Product Add-Ons”). Service will commence on the date that e MARKETER electronically confirms your order of the Service pursuant to this Agreement and the applicable Quote or similar order document (“Delivery Date”). Additional limitations applicable to the specific Service you purchased are further described in the Service Schedule included at the end of this Agreement. In connection with your use of the Service, e-MARKETER hereby grants a non- exclusive, limited license during the Term of this Agreement to (i) place the e-MARKETER tracking code on Client Websites (defined below) for the sole purpose of collecting data for the Service, and to (ii) use the Documentation and make reasonable number of copies of the Documentation. Upon the expiration or early termination of this Agreement, the license granted to you to place such tracking code and use such Documentation automatically terminates. “Client Websites” means those websites, applications or devices owned or controlled by you for which you wish to use the e-MARKETER tracking code or any other identifier to collect data for the Service. “Documentation” means the user documentation published by e-MARKETER and made available to you in connection with the Service. e-MARKETER may make improvements and/or changes in the Service, including the tracking code and the Documentation, from time to time in its sole discretion.

3. RESTRICTIONS
You or any of your employees, officers, directors or authorised contractors, (each a “User”) shall not (i) use the Service or any portion thereof to provide services to any third party or for the benefit of any third party (whether by means of a service bureau, by “mirroring” or “framing” any part of the Service, or otherwise), or make the Service available to anyone other than Users; (ii) copy, modify, create a derivative work of or gain unauthorised access to the Service, including, without limitation, for the purpose of developing a similar or competitive product or service; (iii) remove, obscure or alter any proprietary notices or labels on the Service or any component thereof, or any Documentation; (iv) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein; (v) disclose the results of any performance, functional or other evaluation or benchmarking of the Service, provided, however, you may distribute the Reports and Client Data; (vi) use the Service to upload, store or transmit any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (vii) use the Service to collect, upload, store or transmit infringing, libellous or otherwise unlawful or tortuous material, or to collect, upload, store or transmit data in violation of third-party privacy rights or applicable privacy and data security laws, rules or regulations; or (viii) attempt to gain unauthorised access to the Service or related systems or networks. You shall (a) be responsible for each User’s compliance with this Agreement, (b) be solely responsible for the integrity and legality of Client Data and of the means by which you acquired Client data, and (c) use the Service only in accordance with the applicable Documentation and applicable laws and government regulations. You hereby acknowledge and consent to e-MARKETER’s use of our own products to collect and analyse data regarding your and Users’ access and use of the Service, to improve the Service and e MARKETER technology, and to optimize your access to and use of the Service. Service and all components thereto are not fault-tolerant. Service and all components thereto are not designed or intended for use in any situation where failure or fault of any kind of the Service 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 Service or any component of the Service 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 Service or any component thereof in or in connection with any High Risk Use.

4. RIGHTS OF USAGE, PRIVACY
For e-MARKETER “Privacy Policy” please refer here

5. EVALUATION USE
In the event that you have accessed the Service for evaluation and trial purposes only, the terms of this paragraph shall apply in addition to all the other terms of this Agreement. Your right to use the Service commences when you place the e-MARKETERE tracking code on Client Websites and, unless you and e-MARKETER agree to a different period, automatically terminates in fourteen (14) days (the “Evaluation Period”). Any Service provided to you for evaluation purposes will automatically disable itself at the end of the Evaluation Period, as it employs a restriction mechanism which restricts the program to a limited period of time. This restriction mechanism and the manner in which it enforces the restriction are maintained in confidence by e-MARKETER as a trade secret, and you may not publish, disclose or reveal it. You agree to not do anything to circumvent or defeat the restriction mechanism. Additional product functionality restrictions may apply during the Evaluation Period. Any Client Data collected and analysed by the Service, and any customisation made to your Account during the Evaluation Period, will be permanently lost unless you purchase a subscription to the same Service as those covered during the Evaluation Period. NOTWITHSTANDING ANY OTHER PROVISIONS INCLUDED IN THIS AGREEMENT, DURING THE EVALUATION PERIOD, THE SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY.

6. FEES
You shall pay to e-MARKETER the fees for the Service set forth on all applicable Quote(s) or other similar order document (the “Service Fees”). The Service Fees are non-refundable. Additional terms applicable to Service Fees for the specific Service you purchased are further described in the Service Schedule included at the end of this Agreement.

7. PAYMENT TERMS
Sales tax, use tax, VAT, GST, and any other applicable taxes that are mandatory in the country or region that your company is registered, or doing business in, or that is otherwise required to you by any authorities wherever, are your sole responsibility, and you hereby acknowledge and agree that the Service Fees are exclusive of all such taxes. e-MARKETER RESERVES THE RIGHT TO SUSPEND OR TERMINATE YOUR ACCESS TO THE SERVICE IN THE EVENT OF YOUR FAILURE TO MAKE ANY PAYMENT TO e-MARKETER WITHIN THIRTY (30) DAYS AFTER SUCH PAYMENT IS DUE. e-MARKETER WILL ALSO TERMINATE YOUR ACCESS TO THE SERVICE UPON THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. YOU AGREE AND ACKNOWLEDGE THAT e-MARKETER WILL NOT BE RESPONSIBLE FOR ANY DAMAGES RESULTING FROM SUCH SUSPENSION OR TERMINATION OF YOUR ACCESS TO THE SERVICE, WHETHER SUCH DAMAGES ARE DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL, EVEN IF e-MARKETER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Unless otherwise stated, all fees are quoted in the currency specified in the applicable Quote or similar order document. You are responsible for paying all fees associated with using the Service.

8. PRIVACY
For e-MARKETER “Privacy Policy” please refer here

9. CLIENT DATA
For e-MARKETER “Privacy Policy” please refer here

10. SERVICES
Your purchase of the Service includes basic support for the Service provided in accordance with e-MARKETER then prevailing policy applicable to the specific Service subscribed by you. You may purchase upgraded support for an additional fee. Technical support for the Service begins on the Delivery Date. Your subscription to the Service does not include any professional services, including consulting, implementation and training services, unless otherwise specified in the Quote or other order document. e-MARKETER may provide professional services to you from time to time. Unless otherwise agreed by you and e-MARKETER in writing, such professional services shall be provided in accordance with the terms and conditions set forth on e-MARKETER’s website at www.e-marketer.io.

11. LIMITED WARRANTY
Subject to the terms and conditions of this Agreement and during the Term, e-MARKETER warrants to you that it has the right to provide you with a subscription in the Service in accordance with the terms and conditions of this Agreement, and it will provide the Service to you in a professional manner as measured by current industry standards. e-MARKETER is not responsible and shall have no warranty obligations whatsoever with respect to any Service or any component of the Service that has been modified in any way by anyone other than e-MARKETER.

12. WARRANTY DISCLAIMER
OTHER THAN AS EXPRESSLY SPECIFIED IN SECTION 11 OF THIS AGREEMENT, THE SERVICE, THE e-MARKETER TRACKING CODE, CLIENT DATA, DOCUMENTATION AND REPORTS ARE PROVIDED “AS IS”. e-MARKETER, ITS SUPPLIERS AND LICENSORS MAKE NO WARRANTIES OR REPRESENTATIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON- INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NO WARRANTIES SHALL ARISE BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. e-MARKETER, IT’S SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE SERVICE, THE e-MARKETER TRACKING CODE, CLIENT DATA, DOCUMENTATION OR REPORTS WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT ERRORS WILL BE FIXED, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR TIMELY. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMS THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE.

13. LIMITATION OF LIABILITY
e-MARKETER, ITS SUPPLIERS AND LICENSORS SHALL NOT BE LIABLE TO YOU, ANY USERS OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF ANY REMEDY. e-MARKETER’S CUMULATIVE LIABILITY FOR ANY AND ALL LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE SHALL NOT EXCEED THE TOTAL FEES PAID BY YOU TO e-MARKETER FOR USE OF THE SERVICE UNDER THIS AGREEMENT DURING THE SIX MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM GIVING RISE TO LIABILITY.

14. CONFIDENTIALITY
For e-MARKETER “Privacy Policy” please refer here.

15. U.S. GOVERNMENT END USE PROVISIONS
e-MARKETER provides the Service for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defence transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with e-MARKETER to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights, must be included in any applicable contract or agreement. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit any user to access or use Service in violation of any U.S. export embargo, prohibition or restriction.

16. TERM AND TERMINATION
This Agreement and the Service will commence upon the Delivery Date and, unless earlier terminated, will remain effective for the contract term specified in the applicable Quote or other similar ordering document (together with all renewal terms, if any, the “Term”). Upon the expiration of the Term, this Agreement and the Service will automatically renew for successive 12 month Terms, unless either party provides the other party with at least 30 days prior written notice of its decision not to renew, before the expiration of the then current Term. This automatic renewal of the Agreement and the Service will be for the same Service package, capacity and functionality levels purchased for the then current Term, including all Product Add-Ons purchased during such Term. e-MARKETER shall invoice Customer for the Service Fee for the renewal Term based on the same payment and billing terms as the then current Term, and shall provide prior written notice of any increase in the Service Fees applicable to the renewal Term. e-MARKETER may terminate this Agreement effective immediately upon written notice to you, if (i) You or any User breaches the licensed rights or limitations set forth in Section 3 or 8 above, or (ii) You or any User breaches any other provision of this Agreement (including, without limitation, the payment obligation) and does not cure the breach within thirty (30) days after receiving written notice thereof from e-MARKETER. You may terminate this Agreement effective immediately upon written notice, if e-MARKETER breaches any provision of this Agreement, and does not cure the breach within thirty (30) days after receiving written notice from you. Upon termination by you for e-MARKETER’s breach, you shall pay e-MARKETER for the actual Service Fees, and any other fees related to the Service incurred by you prior to the date of the breach and shall have no further payment obligation to e-MARKETER. Upon termination by e-MARKETER for breach by you or any Client User, you will pay e-MARKETER for the total Service Fees, professional services fees, if applicable, and any Continuation Fees purchased by you under all applicable Quotes or other similar order documentation during the then current Term. Upon termination of this Agreement for any reason, (i) all rights granted herein will immediately cease to exist, and you must promptly discontinue all further use of and e-MARKETER will terminate all access to the Service by you or any User, and (ii) you must destroy all tangible copies of the Documentation and erase all electronic versions thereof, and remove all e-MARKETER tracking code from Client Websites. Upon request, you will certify to e-MARKETER in writing that you have fully complied with the requirement in the foregoing sentence. Upon termination of this Agreement and the Service, you must login at www.e-marketer.io, click on “Delete Account”, and delete your Account. This will delete all profiles within your Account.

17. MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES
e-MARKETER reserves the right to change or modify any of the terms and conditions contained in this Agreement, the Service, or any policy governing the Service, at any time, by posting the new agreement to the e-MARKETER Service site located at www.e-marketer.io. You are responsible for regularly reviewing the agreement. Your continued use of the Service following e-MARKETER’s posting of the change(s) will constitute your acceptance of such change(s).

18. CLIENT REFERENCE
You hereby grant e-MARKETER the right to use your trade name and your corporate logo in connection with e-MARKETER’s promotional materials and website to identify you as a client of e-MARKETER.

19. MISCELLANEOUS; APPLICABLE LAW AND VENUE
1. This Agreement, including all Quotes or similar order documents, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals representations written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in your purchase order or in any other order documentation of yours shall be incorporated into or form any part of this Agreement, and all such terms and conditions shall be null and void.

2. e-MARKETER shall be excused from performance hereunder to the extent that performance isprevented, delayed or obstructed by causes beyond its reasonable control, including without limitation, any force majeure event, problems with Internet access, or problems that result from your or third party actions or inactions or that result from your or third party equipment, software or technology (other than third party equipment within our direct control).

3. If any provision of this Agreement is held to be invalid or unenforceable, that provision will be enforced to the maximum extent permissible, consistent with the original intent of the parties, and the other provisions of this Agreement will remain in force.

4. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

5. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned, or otherwise transferred, in whole or in part, by you, whether voluntary or by operation of law, and any such attempted assignment shall be void and of no effect. Notwithstanding the foregoing sentence,
a party may assign this Agreement in connection with a merger, reorganisation, acquisition, or sale of all or substantially all of its assets, as long as in your case, the surviving entity is not a competitor of e-MARKETER.

6. This Agreement shall be binding upon and will be effective to the benefit of the parties and their respective heirs, successors, permitted assigns, and legal representatives. This Agreement shall be governed by and interpreted under the laws of the State of Texas. Any controversy or claim arising out of or in any way connected with this Agreement or the alleged breach thereof shall be brought in the courts located in the State of Texas.UCITA shall not apply to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

20. IF YOU ARE A CLIENT IN EUROPE, THE MIDDLE EAST OR AFRICA
A. e-MARKETER under this Agreement is an individual company, with its registered offices in Greece. All references to “e-MARKETER” shall refer to the individual company.. B. If the laws of the country in which you are located require that contracts be in the local language in order to be enforceable, the version of this Agreement that shall govern is the translated version of this Agreement in the local language that is produced by e-MARKETER within a reasonable time following your written request to e-MARKETER. C. Section 8 (“Privacy”) above is modified by adding the following: “You hereby appoint e-MARKETER as data processor of Client Data. e-MARKETER will not assume any responsibility for determining the purposes for which and the manner in which Client Data is processed, and You will comply with those applicable legal obligations as a data controller. D. Section 13 (“Limitation of Liability”) above shall not apply and instead the following shall apply:

13. LIMITATION OF LIABILITY
1. Subject to Section 13.3, in no event shall either party be liable under or in relation to this Agreement or its subject matter (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) for any: (i) loss of profits; (ii) loss of sales; (iii) loss of turnover; (iv) loss of, or loss of use of, any (a) software or (b) data; (v) loss of use of any computer or other equipment or plant; (vi) wasted management or other staff time; (vii) losses or liabilities under or in relation to any other contract; or (viii) indirect, special or consequential loss or damage.

2. Subject to Sections 13.1 and 13.3, e-MARKETER’s aggregate liability arising from or in connection with this Agreement (and whether the liability arises because of breach of contract, negligence, misrepresentation or for any other reason) shall not exceed 1.25 times the amounts paid or payable (having been invoiced but not yet paid) by you for the license to use the Service.

3. Notwithstanding anything to the contrary in this Agreement, neither party excludes or limits its liability in respect of death or personal injury caused by the negligence of that party, its servants or agents, breach of any condition as to title or quiet enjoyment implied by Section 12 Sale of Goods Act 1979 or Section 2 Supply of Goods and Services Act 1982, or liability for fraudulent misrepresentation or such other liability which cannot under applicable law be excluded or limited by Agreement. E. Section 19 (“Miscellaneous; Applicable Law and Venue”) shall not apply and instead the following shall apply:

 19. MISCELLANEOUS; APPLICABLE LAW AND VENUE
1. This Agreement, including all Quotes or similar order documents, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals representations written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in your purchase order or in any other order documentation of yours shall be incorporated into or form any part of this Agreement, and all such terms and conditions shall be null and void. This section shall not exclude the liability of a party for fraud or fraudulent misrepresentation or concealment or any resulting right to rescind this Agreement.

2. e-MARKETER shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control, including without limitation, any force majeure event, problems with Internet access, or problems that result from your or third party actions or inactions or that result from your or third party equipment, software or technology (other than third party equipment within our direct control).

3. If any provision of this Agreement is held to be invalid or unenforceable, that provision will be enforced to the maximum extent permissible, consistent with the original intent of the parties, and the other provisions of this Agreement will remain in force.

4. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

5. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of Israel and the parties agree to submit to the exclusive jurisdiction of the Israeli courts. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement prevents either party from seeking injunctive relief in the appropriate or applicable forum.

F. THIRD-PARTY RIGHTS. Nothing in this Agreement is intended to confer any benefit on any third party (whether referred to herein by name, class, description or otherwise) or any right to enforce a term contained in this Agreement under the Contracts (Rights of Third Parties) Act 1999, except that e-MARKETER shall have the benefit of and the right to enforce all provisions of this agreement which benefit and are enforceable by e-MARKETER. Notwithstanding this, the Agreement may be varied without the consent of, and without reference to, e-MARKETER. Service Schedule to e-MARKETER Terms of Subscription Service The following terms apply to your purchase of a subscription in the Service in addition to all of the terms and conditions contained in the Agreement.

e-MARKETER® Analytics™
“Analytics” in this agreement refers to the analysis of data collected from Client Websites, including thecreation of reports, graphs and any other measurement means provided by e-MARKETER’s Services. Your right to access and use e-MARKETER Analytics™ Service is limited to: (i) analyzing the data collected from Client Websites, (ii) analyzing the data collected via e-MARKETER APIs or any other data collection methods and sent to the data collection servers for the Service, (iii) collecting the number of Server Calls subject to the total number of Server Calls you may collect during the Term, such total number as set forth in the applicable Quote or similar order document (“Server Call Entitlement”), and (iv) accessing, viewing and downloading reports generated by your use of the Service (“Reports”). “Server Call” is the unit of measurement for usage of e-MARKETER Analytics™ Service. A Server Call is incurred when a request is sent to the data collection servers for e-MARKETER Analytics™ Service. e-MARKETER Essential Care support and Standard Data Retention are included. e-MARKETER shall have no obligation to return, and you shall have no right to receive, any portion of the Service Fees in the event that the actual usage by you of Server Calls is below the Server Call Entitlement for the Term. If during the Term, the actual usage of e-MARKETER Analytics™ Service exceeds the Server Call Entitlement for the Term, you shall either (a) purchase additional Server Calls, or (b) pay Continuation Fees to e-MARKETER. “Continuation Fees” will be determined by multiplying the number of Server Calls collected in increments of one thousand and any fractions thereof, in excess of the Server Call Entitlement by the applicable Cumulative CPM for the relevant Term. “Cumulative CPM” for Server Calls means the cost per thousand Server Calls as set forth in the applicable Quote or similar order document. You will be solely responsible for monitoring your Server Call usage, and e-MARKETER will have no obligation to notify you when you are approaching or exceeding your Server Call Entitlement. Upon the expiration or earlier termination of the Term, the Server Call Entitlement shall expire. All additional Server Calls purchased in the middle of any term will be co-terminus with the then current term. All other Product Add-Ons purchased in the middle of any term will be pro-rated for the remainder of the then-current term, and will be co-terminus with the then-current term. e-MARKETER® Browsing Patterns™, e-MARKETER® Custom Profiles™ “Browsing Patterns” and “Custom Profiles” in this agreement refer to the analysis of data collected from Client Websites, including the creation of custom profiles, reports, and any other measurement means provided by e-MARKETER’s Services. Your right to access and use e-MARKETER Browsing Patterns™ Service and e-MARKETER Custom Profiles™ Service is limited to: (i) analyzing the data collected from Client Websites, (ii) analyzing the data collected via e-MARKETER APIs or any other data collection methods and sent to the data collection servers for the Service, (iii) tracking and loading the number of Trigger Events subject to the total number of Trigger Events you may track and load in the e-MARKETER Browsing Patterns™ database during the Term, such total number as set forth in the applicable Quote or similar order document (“Trigger Event Entitlement”), and (iv) accessing, viewing and downloading Reports. “Trigger Event” is the unit of measurement for usage of e-MARKETER Browsing Patterns™ and e-MARKETER Custom Profiles™. A Trigger Event is incurred when a visitor activity or a transaction, as defined by you, are tracked and loaded in the e-MARKETER Browsing Patterns™ database. e-MARKETER Essential Care support and Standard Data Retention are included.

e-MARKETER shall have no obligation to return, and you shall have no right to receive, any portion of the Service Fees in the event that the actual usage by you of Trigger Events is below the Trigger Event Entitlement for the Term. If during the Term, the actual usage of Service exceeds the Trigger Event Entitlement for the Term, you shall either (a) purchase additional Trigger Events, or (b) pay Continuation Fees to e-MARKETER. “Continuation Fees” will be determined by multiplying the number of Trigger Event collected in increments of one thousand and any fractions thereof, in excess of the Trigger Events Entitlement by the applicable Cumulative CPM for the relevant Term. “Cumulative CPM” for Trigger Events means the cost per thousand Trigger Events as set forth in the applicable Quote or similar order document. You will be solely responsible for monitoring your Trigger Events usage, and e-MARKETER will have no obligation to notify you when you are approaching or exceeding your Trigger Event Entitlement. Upon the expiration or earlier termination of the Term, the Trigger Event Entitlement shall expire. All additional Trigger Events purchased in the middle of any term will be co-terminus with the then current term. All other Product Add-Ons purchased in the middle of any term will be pro-rated for the remainder of the then-current term, and will be co-terminus with the then-current term.

e-MARKETER® Optimise™, e-MARKETER® Actions™
“Optimise” in this agreement refers to the testing of data collected from Client Websites, including selective content publishing and targeted web page actions, based on segmentation. Your right to access and use e-MARKETER Optimise™ Service and e-MARKETER Actions™ Service is limited to: (i) testing, segmenting and targeting the total number of Optimise™ Events subject to the total number of Optimise Events you may exercise during the Term, such total number as set forth in the applicable Quote or similar order document (“Optimise™ Events Entitlement”), and (ii) the specific domains listed in the applicable Quote or similar order document. “Optimise™ Event” is the unit of measurement for usage of e-MARKETER Optimise™. An Optimise™ Event is incurred each time visitors and/or email recipients of Client Websites take action that triggers a request to the e-MARKETER Optimise™ data centres. A single Optimise™ Event will be counted for every page presentation, AJAX refresh, email open, or click where a e-MARKETER Optimise™ test and/or targeting scenario is currently active. e-MARKETER Optimise™ support and Optimise™ standard data retention are included. e-MARKETER shall have no obligation to return, and you shall have no right to receive, any portion of the Service Fees in the event that the actual usage by you of Optimise Events is below the Optimise Event Entitlement for the Term. If during the Term, the actual usage of Service exceeds the Optimise Event Entitlement for the Term, you shall either (a) purchase additional Optimise Events, or (b) pay Continuation Fees to e-MARKETER. “Continuation Fees” will be determined by multiplying the number of Optimise Events collected in increments of one thousand and any fractions thereof, in excess of the Optimise Event Entitlement by the applicable Cumulative CPM for the relevant Term. “Cumulative CPM” for Optimise Events means the cost per thousand Optimise Events as set forth in the applicable Quote or similar order document. You will be solely responsible for monitoring your Optimise Event usage, and e-MARKETER will have no obligation to notify you when you are approaching or exceeding your Optimise Event Entitlement. Upon the expiration or earlier termination of the Term, the Optimise Event Entitlement shall expire. All additional Optimise Events purchased in the middle of any term will be co-terminus with the then current term. All other Product Add-Ons purchased in the middle of any term will be pro-rated for the remainder of the then-current term, and will be co-terminus with the then-current terms.