Terms of Use for WebKite

Updated: August 4, 2014


These Terms of Use are offered by WebKite, Inc, a Delaware corporation (“WebKite”), to You subject to your acceptance without modification of all of the terms and conditions contained herein, and all other notices and policies applicable to WebKite Products that may be published from time to time on this Site (collectively, the “Agreement”). For purposes of this Agreement, “You” or “User” shall refer to an individual, subscriber, member, customer or user who is at least 18 years of age individually, or an organization or legal entity.

For purposes of this Agreement, the “Site” shall refer to WebKite.com or any other website managed by WebKite and/or any of its Affiliates or any successor or replacement of such website. “WebKite Products” are software and services (SAAS) available through the Site that allow customers to publish structured data and to help users make personalized decisions, as well as clients provided by WebKite to access that software and services. If You do not agree to all of the terms and conditions set forth herein, please refrain from using WebKite Products. Paid services such as consulting, hosting, custom configuration and other additional functionality may be available on the Site and are offered pursuant to separate terms and conditions.

By clicking the “I AGREE” button, you acknowledge that you have read, understand and agree to be legally bound by the terms of this Agreement, and further represent that You are at least 18 years of age.] If You are using or attempting to access WebKite Products on behalf of an organization or legal entity, You further represent and warrant that (i) You are an authorized representative of that organization or entity, and (ii) You have the ability to bind that organization or entity to this Agreement. If you do not agree with any terms or condition of this Agreement then you must select the “I DECLINE” button, and must not continue to use or attempt to access WebKite Products.

1. Certain Definitions

Certain capitalized terms are defined above and in the body hereof. Certain other capitalized terms are set forth below. As used herein, “we,” “us,” “our,” and “WebKite” means WebKite, Inc. WebKite and User are each referred to herein as a “Party” and collectively as the “Parties.”

“Affiliate” means with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity. As used herein, “control” shall mean the ability to direct more than 50% of the voting shares/equity units of an entity.

“Content” means content, text, templates, images, reviews, ratings, video and audio, multimedia, notes, ideas, suggestions, concepts or other material including, without limitation, copyrightable works under applicable Law.

“End User” means any individual who utilizes or visits a User’s Site.

“Intellectual Property Right” means all rights in, to, or arising out of any patent, copyright, Trademark, moral right or trade secret right and any other intellectual property right arising under any Laws and all ancillary and related rights, including all rights of registration, re­issue, division, continuation, extensions, renewal and causes of action for violation, misappropriation or infringement of any of the foregoing, and (ii) patented or non­patented inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know­how technology and technical data, and (iii) any other similar equivalent proprietary rights anywhere in the world.

“Law” means any law, ordinance, rule, regulation, order, license, permit, judgment, decision or other requirement, now or hereafter in effect, of any governmental authority (e.g. on a federal, state, or provincial level, as applicable) of competent jurisdiction.

“Person” means any individual, corporation, partnership, limited liability company, governmental authority, association, joint venture, division or other entity, whether or not having distinct legal existence.

“Technology” means any (a) ideas, procedures, processes, systems, methods of operation, concepts, principles and discoveries protected or protectable under the Laws of any jurisdiction, (b) interfaces, protocols, glossaries, libraries, specifications, grammars, data formats, or other similar materials, and (c) software, hardware, code, technology or other functional item.

“Trademark” means any trademark, service mark, trade dress (including any proprietary “look and feel”), trade name, symbol, artwork, indicia of origin, other proprietary logo or insignia or other source or business identifier, protected or protectable under any Laws.

“User” means any user who registers for use of any of the Services.

“User Content” means any Content provided by User to WebKite hereunder. User Content shall specifically exclude any metadata created by the use of Webkite Products on User’s Site. Such metadata shall be the sole property of WebKite (please see and cross­reference the definition of WebKite Data below).

“User Marks” means any Trademarks, all applications to register and registrations for the foregoing, and any renewals, therefore, under which User offers its products or services.

“User’s Site” means the website owned and operated by the User on which WebKite Products display data.

“WebKite Data” means any data, including without limitation metadata, relating to the use of WebKite’s services or technology on the User’s Site such as User preference information, data schema, specific facts and other similar information collected by WebKite or made available via the WebKite Interface.

“WebKite Interface” means the web based interface, provided and hosted by WebKite that allows User to access and control the WebKite Data, and other software provided by WebKite that the User might host on their own site to display WebKite Data.

“WebKite Marks” means all trademarks, service marks, trade dress, trade names, domain names, corporate names, brand names, proprietary logos, symbols, artwork, all other indicia or origin, all applications to register and registrations for the foregoing, and any renewals therefore, under which WebKite offers its products or services.

“WebKite Platform” means the online service operated by WebKite which is comprised of APIs, administration pages, dynamic expressions of data, and any associated API or widget. The WebKite Platform includes, without limitation, the WebKite Interface.

“WebKite Visuals” means the visual elements, including without limitation pages or portions of pages, toolbars or other graphical overlays, such as a widget library, provided by WebKite through the WebKite Platform that include, without limitation, WebKite decision widgets, item displays, and results sidebars.

2. Authority

Registration Information. WebKite’s Services are available only to those who create an account, including authentication via a trusted third party of WebKite’s choosing (“Log­-In Information”).

To register as a User, you must complete the registration process for the Site and any Services. We reserve the right at any time to modify or cease providing some or all of the Services at our sole discretion and without notice.

You are solely responsible for maintaining the security of your Log-­In Information and the User Site. You are responsible for any use of or action taken under your Log­-In Information. Third parties with knowledge of your Log-­In Information can gain access to your account information on the Site and may take actions for which you shall be held accountable and liable. WebKite is entitled to, and shall, assume that any person using the Site and Services under your Log­-In Information is you and you are liable and responsible for all purchases, statements, uses and actions made under your Log­-In Information. You may be held liable for losses incurred by WebKite or any other Site users or visitors due to the unauthorized use of your account resulting from the failure to maintain the security of these items. WebKite shall NOT be responsible whatsoever if your Log­-In Information is used by an unauthorized entity or misappropriated by any third party. You may not use anyone else’s Log-­In Information without express permission of the account holder. WebKite reserves the right to terminate accounts, refuse to provide services, remove or edit Content, or cancel orders in its sole discretion. You must not describe or assign keywords to your User Site in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others. WebKite may change or remove any description or keyword that it considers inappropriate or unlawful or otherwise likely to cause WebKite liability.

For purposes of identification and billing, you agree to provide WebKite with accurate, complete, and updated information if required by the Site registration or Account Upgrade process (“Registration Data”), including your legal name, address, telephone number(s), working e­mail account information and applicable payment data (if any).

You agree to update this information within 30 days of any change to it, and to the extent that you have provided credit card information for payment of Subscription Fees, you agree to immediately notify WebKite of any changes thereto, or no later than the next scheduled payment date. Failure to comply with this provision (including, without limitation, falsification of any Registration Data) may, in WebKite’s sole discretion, result in immediate suspension or termination of your right to use the Services. If you provide any information that is untrue, inaccurate, not current or incomplete, WebKite has the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof).

3. License; Restrictions on License

3.01. License

Subject to the terms and conditions set forth in these Terms of Use, WebKite hereby grants to User a worldwide, nonexclusive, nontransferable, limited, personal license only during the Term to:

  1. Use and access WebKite Products
  2. Use the WebKite Platform, solely and only to the extent necessary to use and access WebKite Products for User’s own internal business purposes, subject to the terms and conditions and restrictions contained herein;
  3. Access WebKite Data solely through the WebKite Interface; and
  4. Use, reproduce, distribute, transmit, publicly perform, and publicly display the WebKite Marks and the WebKite Visuals as provided through the WebKite Platform and on the User Site.

WebKite makes no commitment, promise, representation or warranty that WebKite Products will always be available, will have the same or even similar look, feel or appearance in the future, will not be terminated without prior notice to User or its End Users, will have the ability to interact with, process or accept User Content in the same or similar formats. User accepts the license granted to it subject to all the terms and conditions contained herein and acknowledges that WebKite may terminate User’s license, for any reason, at its sole and absolute discretion and without prior notice to User.

3.02. Restrictions on License

You may use the Site to develop a product or service that searches, displays, analyzes, retrieves, and views information. You may not use the Site or any affiliated sites for any illegal, prohibited or unlawful purpose or in any way that violates this Agreement. You shall not attempt to obtain unauthorized access to any portion of the Site or WebKite Products. All rights not expressly granted to User herein are reserved by WebKite. User shall not:

  1. License, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the WebKite Platform or WebKite Data in any way without express written permission from WebKite or WebKite;
  2. Modify or make any derivative works based upon the WebKite Platform or WebKite Data;
  3. Reverse engineer, disassemble, decompile or otherwise attempt to discover the source code for the WebKite Platform, or WebKite’s Sites, Services or other Technology for any reason, including without limitation, to (i) build a competitive platform, product or service, (ii) build a product or service using similar ideas, features, functions or graphics of the WebKite Platform or WebKite Data, and/or (iii) copy, store, display, transmit or otherwise disclose any ideas, features, function or graphics of the WebKite Data or WebKite Platform;
  4. Remove or alter or seek to conceal any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the WebKite Content or WebKite Visuals; or
  5. Retain any copies of the WebKite Visuals.

The User Site shall not contain or promote any products, services, or materials that constitute, promote or are used for the purpose of dealing in malicious computer programs or code, counterfeit goods, items subject to United States embargo, hate materials or materials urging acts of violence, goods made from protected animal/plant species, recalled goods, hacking, surveillance, interception or descrambling equipment, cigarettes, illegal goods or activities, police items, unlicensed trade or dealing in stocks and securities, gambling items, professional services regulated by state licensing regimes, non­transferable items such as airline tickets or event tickets, non­packaged food items, or weapons or weapons accessories.

The license of the WebKite Visuals currently granted by WebKite to User is limited to permitting User to make direct server calls to WebKite for the WebKite Visuals and to distribute the WebKite Visuals to End Users of User’s Site immediately upon receipt by User servers. If WebKite believes, in its sole discretion, that User has violated or attempted to violate this Agreement or the spirit of these terms, User’s ability to use and access the WebKite Platform and any associated API may be temporarily or permanently revoked, with or without notice.

4. User’s License Grant to WebKite

User shall own all of the User Content, but User hereby grants, and WebKite accepts, the following licenses to WebKite and its Affiliates:

  1. A non-­exclusive, royalty free, sublicensable, perpetual, unlimited license for the User Content;
  2. A non-exclusive, royalty-free, perpetual license for the User Marks only for the purpose of creation and dissemination of marketing and promotional materials that relating to WebKite’s and its Affiliates’ services and/or products.

Furthermore, WebKite reserves the right to (i) include links to other third party or WebKite Kites on User’s Site and (ii) terminate User’s access to WebKite services and Technology for any reason, including, but not limited to, high volumes of traffic.

5. Term and Termination

The term hereof shall start on the date of your completed registration for WebKite Products and continue until terminated by us or you as provided herein (the “Term”). User agrees that WebKite, in its sole discretion, and for any or no reason, may terminate any User’s account (or any part or Service thereof) and disallow any further access to or use of, by User or its End Users, any WebKite Technology or services, including, but not limited to, WebKite Data, WebKite Interface, WebKite Marks, WebKite Platform and WebKite Visuals. Further, WebKite reserves the right to discontinue any service or Technology at any time, including the right to discontinue the display of any User Content. User agrees that any termination of User’s access to the service or User’s account may occur without prior notice and for any reason in WebKite’s sole and absolute discretion, and User agrees that WebKite will not be liable to User or any third party for such termination.

Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of User’s use of WebKite’s services or Technology may be referred to appropriate law enforcement authorities. For the sake of clarity (and not limiting WebKite’s rights to terminate granted above), WebKite reserves the right to immediately terminate this Agreement or suspend performance for cause, in each case without penalty, of any kind whatsoever, if it suspects or learns that User or User’s Site is infringing on the Intellectual Property Rights of WebKite or any other third party. Termination is not the sole remedy of WebKite, and WebKite may have and hereby preserves all other remedies at law or in equity in the event of such acts.

6. Ownership

6.1. By User

Subject to Section 4 of this Agreement and the licenses granted to WebKite in this Agreement, WebKite acknowledges and agrees that, as between User and WebKite, User retains its ownership right, title, and interest in and to the User Site (excluding the WebKite Content, WebKite Platform, and WebKite Marks), and User Marks and the intellectual property rights therein.

6.2. By WebKite

User acknowledges and agrees that, as between User and WebKite, WebKite owns all right, title, and interest in and to the WebKite Service (excluding User Marks), WebKite Marks, WebKite Content, WebKite Data, WebKite Platform (collectively the “WebKite Property”) and the intellectual property rights therein, and nothing herein shall confer on User any right of ownership or interest to WebKite Products. The parties further agree that all right, title, and interest in and to any joint works created under the Agreement, excluding the User Marks, shall vest in and be assigned to WebKite, and to the extent any such rights vest in User, User hereby assigns all such rights, title, and interest to WebKite.

7. Representations and Warranties

7.1. Mutual Representations and Warranties

Each Party represents and warrants that (i) it has full power and authority to enter into this Agreement, perform all of its obligations hereunder, and grant the licenses it grants hereunder; and (ii) its entry into and performance hereunder does not and shall not violate any applicable laws, rules, regulations, orders or agreements by which it is bound.

7.2. Representations and Warranties of User

User represents and warrants as follows:

  1. It is not a competitor of WebKite;
  2. It shall not access the WebKite Platform for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes;
  3. It shall use the WebKite Platform only for User’s own internal business purposes and shall not (i) interfere with or disrupt the integrity or performance of the WebKite Platform or the date contained therein, or (ii) attempt to gain unauthorized access to the WebKite Platform or WebKite’s related systems, sub-domains or networks; and
  4. It shall not (i) interfere with the operation of any WebKite service or Technology, or (ii) block any functionality of any WebKite service or Technology as accessed through the WebKite Platform, and shall fully display any WebKite Visuals provided through the WebKite Platform.

7.4. DISCLAIMERS OF OTHER WARRANTIES

EXCEPT AS EXPRESSLY STATED IN THIS SECTION 7, (I) WEBKITE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO WEBKITE’S NETWORK, SERVICE, TECHNOLOGY, CONTENT, OR MARKS PROVIDED HEREUNDER, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE; AND (II) EACH USER ACKNOWLEDGES THAT WEBKITE’S NETWORK, SERVICE, TECHNOLOGY, CONTENT AND MARKS ARE PROVIDED “AS IS” AND THAT WEBKITE MAKES NO WARRANTY THAT THE FOREGOING ITEMS WILL BE FREE FROM BUGS, FAULTS, DEFECTS, OR ERRORS OR THAT ACCESS TO ITS NETWORK, SERVICES OR TECHNOLOGY WILL BE UNINTERRUPTED.

8. Confidentiality

8.1. Nondisclosure

User agrees that it shall not use or reproduce any WebKite Confidential Information other than for the limited purposes of exercising its rights and performing its obligations hereunder and only to the extent necessary for such purposes and shall restrict disclosure of such WebKite Confidential Information to its employees, consultants, or advisors who have a need to know and are bound by confidentiality. All third parties to whom the User discloses WebKite Confidential Information must be bound in writing by obligations of confidentiality and non-use at least as protective of such information as this Agreement. Notwithstanding the foregoing, it shall not be a breach hereof for User to disclose WebKite Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, User has given WebKite prior notice and reasonable assistance to permit it a reasonable opportunity to object and/or limit the judicial or governmental requirement to disclosure.

8.2. Exceptions

Notwithstanding anything to the contrary herein, User shall not be liable for using or disclosing information that User can prove: (i) was in the public domain at the same time it was disclosed or has entered the public domain through no fault of the User, its employees, consultants, advisors or agents; (ii) was known to the User, without restriction, at the time of disclosure, as demonstrated by files or other written records in existence at the time of disclosure; (iii) is disclosed with the prior written approval of WebKite; (iv) becomes known to the User, without restriction, from a source other than WebKite without breach hereof by the User and otherwise not in violation of WebKite’s rights; or (vi) is disclosed generally to third parties by WebKite without restrictions similar to those contained herein.

8.3. Equitable Relief

The User agrees that a breach of this Section 8 may result in immediate and irreparable harm to WebKite that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, WebKite shall be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.

9. Limitation on Damages

9.1. Exclusion of Direct, Incidental and Consequential Damages

WEBKITE WILL NOT BE LIABLE TO USER OR ANY AFFILIATES OF USER FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED HERETO, EVEN IF WEBKITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, WARRANTY OR OTHERWISE.

9.2. Maximum Aggregate Liability

THE MAXIMUM LIABILITY OF WEBKITE FOR ANY CLAIMS ARISING IN CONNECTION HEREWITH WILL NOT EXCEED THE CUMULATIVE AMOUNT PAID TO WEBKITE HEREUNDER IN THE MOST RECENT CALENDAR YEAR. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

10. Indemnification

10.1. Indemnity

User shall indemnify, defend, and hold harmless WebKite and its officers, directors, consultants, employees, successors and permitted assigns from and against any damages, losses, and expenses (including reasonable attorneys’ fees) as a result of a third-party claim, demand or action (collectively, a “Claim”) arising from (A) a breach or alleged breach of its representations or warranties herein or (B) relating to the infringement or alleged infringement of any third party intellectual property right, with respect to the User Site (excluding the WebKite Content and WebKite Marks), User Content, and/or User Marks.

10.2. Procedure

WebKite shall reasonably promptly notify the User in writing of any such Claim; provided that the failure to provide such notice shall not relieve User of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure. User shall have the right to control the defense (including any settlements) of any such Claim at its expense; provided, that (i) the User shall keep WebKite informed of, and consult with the WebKite in connection with the progress of such litigation or settlement and (ii) User shall not enter into any claim, resolution or settlement that affects WebKite’s rights or interests without the WebKite’s prior written consent, not to be unreasonably withheld or delayed, or require WebKite to admit liability without WebKite’s prior written consent, which may be withheld at WebKite’s sole and absolute discretion.

11. Copyright Infringement and DMCA Policy

User is solely responsible for any and all copyright infringement on User’s Site and shall indemnify and hold WebKite harmless for any such copyright infringement. User shall accept the default Digital Millennium Copyright Act Policy on User’s Site and shall enter their contact information in order to receive notifications of claimed copyright infringement.

If User does not have a DMCA Policy and WebKite is contacted directly, WebKite reserves the right to unpublish User’s Data or in its sole discretion remove the infringing material or disable all links to the infringing material without prior notice to User. WebKite accepts no obligation to notify User of any correspondence received for User. WebKite will terminate User’s access to and use of the Site, WebKite services and Technology if, in WebKite’s sole and absolute discretion, the User is determined to be a repeat infringer of the copyrights or other intellectual property rights of another.

To notify WebKite in accordance with its DMCA policy, please provide a written notification with the following information:

  1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
  2. A description of the copyrighted work that you claim has been infringed;
  3. A description of where the material that you claim is infringing is located on the Site or services;
  4. Your address, telephone number, and e-mail address;
  5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
  6. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

For notice of claims of copyright infringement on the Site, you can send an e-mail to our Copyright Agent at correspondence@webkite.com or you may mail such notice to the attention of our Copyright Agent at the address listed in Section 20.5 below.

12. Trademarks

WebKite, WebKite.com, the WebKite.com logo, Pikimal, and all other trademarks, service marks, graphics and logos used in connection with WebKite.com, or the Site are trademarks or registered trademarks of WebKite or WebKite’s licensors. WebKite’s trademarks may not be used in connection with any product or service that is not WebKite’s, in any manner that is likely to cause confusion, or in any manner that disparages or discredits WebKite. Other trademarks, service marks, graphics and logos used in connection with the Site may be the trademarks of other third parties. All trademarks, service marks, and logos that are not owned by WebKite and appear on this Site are the property of their respective owners. Your use of the Site and WebKite services and Technology grants you no right or license to reproduce or otherwise use any WebKite or third-party trademarks.

13. User Content Representation

User Content shall not be illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable, and shall not consist of, or contain, software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, personally identifiable information or any form of “spam.” You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of the User Content. WebKite reserves the right (but not the obligation) to remove or edit any such User Content. WebKite has not reviewed, and cannot review, all of the User Content, including computer software, posted to the User Site, and cannot therefore be responsible for that material’s content, use or effects. By providing services to the User Site, WebKite does not represent or imply that it endorses the material there posted, or that it believes such material to be accurate, useful or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. The User Site may contain content that is offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors. WebKite disclaims any responsibility for any harm resulting from the use by visitors or End Users of User’s Site, or from any downloading by those visitors or End Users of content there posted.

14. Links to Third Party Sites

The Site may contain links to independent, third party websites and webpages. Such a link permits you to leave the Site. The linked sites are not under our control, we do not endorse the content of such linked sites and we are not responsible for their contents, the contents of any link contained in a linked site, or any changes or updates to such sites. You should carefully review the privacy statements and other terms and conditions of use of all linked sites you visit and exercise your own, independent judgment to govern your interaction with such linked sites.

15. Conduct

Users agree not to use, or encourage or permit others to use, the Service to (a) stalk and/or harass another, (b) harm minors in any way, (c) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; (d) forge headers or otherwise manipulate identifiers to disguise the origin of any User Content posted on or transmitted through the Service, (e) use the Site, Service or Content such that it shall mislead a third party into believing that he or she is interacting directly with WebKite or the Service, or (f) access or use the Service in any manner that could damage, disable, overburden or impair any WebKite server or the networks connected to any WebKite server.

16. Access On Termination

Upon termination of the Agreement, WebKite shall unpublish the User’s Site. WebKite will save User’s Content for a period of 30 days. At the expiration of 30 days, WebKite may delete the User Content in WebKite’s sole discretion. In addition, WebKite will make the User’s Content available, to User if User requests the same within 10 days of the date of termination, provided that any and all fees, indemnification claims or any other amount that may be due and owing to WebKite hereunder have been paid in full.

17. Changes

WebKite may, in its sole discretion, modify or revise these Terms of Use at any time, and you agree to be bound by such modifications or revisions. If modified or revised, we will make the latest version of the Terms of Use available on this web page (link), and an updated revision date will indicate that changes have been made.

18. WebKite Use of Information; Privacy

18.1. Information

WebKite collects information and data on how the User Sites are used by visitors (including, without limitation, search terms used or how users perform searches, communication preferences, navigation of the Site, etc.) to provide information to User, improve its services and Technology and offer new services that would help User. WebKite reserves the right to disclose to, share, sell, license or otherwise distribute all such information and data with third parties in its sole and absolute discretion without any compensation to User. User represents and warrants that User’s privacy policy informs all End Users and visitors that WebKite may, and has the right to, collect, share and sell all such information and data. WebKite is the sole owner of all information and data collected from Users of the WebKite Platform. User agrees hereunder to abide by the terms of WebKite’s Privacy Policy, in effect from time to time, and acknowledges that User shall be required to reference and include WebKite’s Privacy Policy on User’s Site.

18.2. Feedback

WebKite may send Users questionnaires or surveys on a periodic basis about its services and Technology. User acknowledges and agrees that any comments, ideas and/or reports provided to WebKite, whether in response to such questionnaires or surveys or otherwise (collectively, “Feedback”), shall be considered WebKite’s proprietary and confidential information, and you hereby irrevocably transfer and assign (and agree to cause your employee(s) to irrevocably transfer and assign) to WebKite all intellectual property rights embodied in or arising in connection with such Feedback, and any other rights or claims that you may have with respect to any such Feedback.

18.3. Privacy

WebKite has created a Privacy Policy that describes our collection and disclosure practices regarding the information that you provide to us. The security of your personal information is important to us. While there is no such thing as “perfect security” on the Internet, we shall take reasonable steps to help ensure the safety of your personal information. However, you understand and agree that such steps do not guarantee that the Site and WebKite’s services and Technology are invulnerable to security breaches or immune from viruses, security threats or other vulnerabilities. The terms of WebKite’s Privacy Policy are hereby incorporated by reference into this Agreement. In the event of a conflict between the terms of the Privacy Policy and this Agreement, this Agreement takes precedence and controls.

19. Attribution

WebKite shall have a right of attribution on each page of User’s Site in the form of an approved WebKite logo that links to the website currently hosted at www.WebKite.com.

20. Miscellaneous

20.1. Assignment

User may not assign, sublicense, delegate or otherwise transfer (by operation of law or otherwise) any of its rights or obligations hereunder without the prior written consent of WebKite, which may be withheld at WebKite’s sole and absolute discretion. Any permitted assignment shall be binding upon and enforceable by and against User’s successors and assigns, provided that any unauthorized assignment shall be null and void and constitute a breach hereof.

20.2. Entire Agreement

This Agreement, and any exhibits and amendments thereto, constitute the entire Agreement between the Parties and supersedes all previous agreements, oral or written, with respect to the subject matter hereof. This Agreement may not be amended without the prior written consent of both parties.

20.3. Governing Law; Venue; Consent to Jurisdiction

This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania without giving effect to its conflict of law rules. Each of the Parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts of the Western District of Pennsylvania.

20.4. Notices; E-mail Communications

All notices and communications hereunder shall be in writing. When you visit the Site or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We shall communicate with you by e-mail or by posting notices on the Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. If we send information and/or notices by e-mail, we shall use the e-mail addresses you designated for notifications and updates in your account, or by any other means then specified by WebKite. You may update your contact information by logging into your account. You shall update your e-mail address (as well as your legal name, address and telephone number) as often as necessary to ensure that they are accurate. You must send all notices and other communications relating to WebKite to correspondence@webkite.com.

20.5. Our Address

All Notices for WebKite or any Affiliate shall be sent to the following address:

WebKite
1727 Boulevard of the Allies
Pittsburgh, Pennsylvania 15219

P: (412) 346-8170
Email: correspondence@webkite.com

20.6. Relationship of Parties

The Parties are independent contractors and shall have no right to assume or create any obligation or responsibility on behalf of the other Party. Neither Party shall hold itself out as an agent of the other Party. This Agreement shall not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.

20.7. Severability

If any provision hereof is held invalid or unenforceable in any jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.

20.8. Waiver

No delay or failure by either Party to exercise any right or remedy hereunder shall constitute a waiver of such right or remedy. All waivers must be in writing and signed by an authorized representative of the Party waiving its rights. A waiver by any Party of any breach or covenant shall not be construed as a waiver of any succeeding breach of any other covenant.

20.9. Headings

The headings of the articles and paragraphs contained herein are inserted for convenience and are not intended to be part of or to affect the interpretation hereof.

20.10. Construction

Both parties acknowledge and agree that the Agreement has been jointly prepared and its provisions shall not be construed more strictly against either Party as a result of its participation in such preparation.

21. Subscription Plans

For purposes of this Section 21, “Visitor” shall mean a single user (as defined by a unique id within a cookie) during a single Visit. Further a “Visit” shall mean a request from a Visitor wherein no pause greater than 30 minutes has occurred. To the extent that a Visitor exceeds the 30 minute pause, the next request shall initiate a new Visit and constitute a new Visitor to User’s Site. The current Subscription Plans offered by WebKite, which may be changed from time to time by WebKite in its sole discretion, include the following:

21.1. Free

Restrictions.

Other Rights Reserved by WebKite.

General Restrictions.