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Terms and Conditions of Use
Terms & Conditions
OMNITURE DEVELOPER CONNECTION TERMS OF USE

ACCEPTANCE

OMNITURE, INC. AND ITS SUBSIDIARIES AND AFFILIATED COMPANIES (COLLECTIVELY "OMNITURE") PROVIDE THE OMNITURE DEVELOPER CONNECTION WEB SITE (THE "SITE") TO YOU AND ANY OTHER ENTITY ON WHOSE BEHALF YOU ACCEPT THESE TERMS (COLLECTIVELY "YOU"), SUBJECT TO THESE TERMS OF USE. BY ACCESSING OR USING THE SITE YOU AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS OF USE, DO NOT ACCESS OR USE THE SITE. 

If YOU are using the SITE on behalf of YOUR employer or some other entity, YOU represent and warrant that YOU are authorized to accept these TERMS OF USE on such entity's behalf, and that such entity agrees to indemnify YOU and OMNITURE for violations of these TERMS OF USE.

CONTENT SUBMISSIONS, FEEDBACK, AND OWNERSHIP

In conjunction with YOUR use of the SITE, YOU may submit, post, upload, import, or otherwise make available data, reports, information, text, graphics, code, message board content, or other materials (collectively, the "CONTENT"). By sharing CONTENT, YOU represent and warrant that YOU are the sole owner of all rights in the CONTENT, or that YOU have the absolute right to license CONTENT as provided in these TERMS OF USE.  All CONTENT is, and will be treated as, non-confidential and non-proprietary. Nothing in this Section shall be considered a grant to YOU of any right, title or interest in or to OMNITURE’s or its third party suppliers’ underlying rights in the SITE or OMNITURE's products and services accessible via the SITE (the “OMNITURE INTELLECTUAL PROPERTY”).  OMNITURE and its third party suppliers, as applicable, retain all right, title and interest in and to the OMNITURE INTELLECTUAL PROPERTY including all improvements, modifications, suggestions, enhancement requests, feedback, recommendations or derivative works thereof, including those made by YOU, if any, which YOU hereby assigns to OMNITURE. 

YOU are entirely responsible for all CONTENT that YOU share via the SITE. YOU agree not to share CONTENT that: (i) is inaccurate, harmful, obscene, pornographic, defamatory, racist, violent, offensive, harassing, or otherwise objectionable to OMNITURE or other users of the SITE; (ii) includes unauthorized disclosure of personal information; (iii) includes any personally identifiable information (which includes but is not limited to information regarding a minor, financial information, and medical or health information); (iv) violates or infringes anyone's intellectual property rights; (v) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (vi) or that contains third-party commercial advertisements. OMNITURE does not routinely monitor CONTENT, but OMNITURE reserves the right to monitor, restrict access to, edit or remove any CONTENT that is available via the SITE.

By sharing CONTENT, YOU grant OMNITURE a perpetual, worldwide, irrevocable, sublicensable, non-exclusive license to use, reproduce, adapt, modify, publish, translate, publicly perform, publicly display, and distribute YOUR CONTENT (including any portion or derivative thereof) in any form and by any means for any purpose whatsoever. OMNITURE may sublicense all or part of its rights and licenses or assign them to third parties. Neither OMNITURE nor any third party using YOUR CONTENT in accordance with this policy will be obligated to pay YOU any royalties or other compensation for use of YOUR CONTENT. While YOU will retain ownership of the copyright in the CONTENT YOU share, YOU understand and acknowledge that the CONTENT YOU share shall become part of the SITE, and that OMNITURE will own the compilation copyright in the SITE.

GENERAL RESTRICTIONS

YOU agree not to do any of the following: (i) distribute any CONTENT to any third party outside the SITE; (ii) access or use the SITE or CONTENT not in accordance with these TERMS OF USE; (iii) impersonate any other person or entity, whether actual or fictitious, including impersonating an employee of OMNITURE; (iv) attempt to decipher, decompile, disassemble, or reverse engineer any of the SITE; (v) distribute, modify, or copy the SITE; (vi) remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols or labels on the SITE; (vii) share or disclose YOUR password with anyone.  YOU agree to immediately notify OMNITURE of any unauthorized use of YOUR password. By accessing the SITE YOU agree and covenant not to sue OMNITURE in connection with YOUR use of the SITE.

NOTICES, TERMINATION, AND MODIFICATION OF THESE TERMS OF USE

OMNITURE may provide notice to YOU via email, regular mail, or posting notices or links to notices on the SITE. OMNITURE reserves the right at any time to modify, suspend or terminate YOUR use of or access to the SITE, with or without notice. OMNITURE may also delete, or bar access to or use of, all related Information and files. OMNITURE will not be liable to YOU or any third-party for any modification, suspension, or termination of YOUR use of or access to the SITE, or loss of related information. OMNITURE may amend these TERMS OF USE at any time by posting the amended TERMS OF USE on this SITE.

NON-COMPETITION

YOU agree that YOU will not use the SITE or services available via the SITE (including, but not limited to the Code Gallery, the Sandbox, and API documentation) to compete with OMNITURE either now or in the future. 

CONFIDENTIALITY

YOUR access to, and use of, the SITE may give YOU access to information that is confidential to OMNITURE, its wholly owned subsidiaries, and/or its affiliates ("CONFIDENTIAL INFORMATION"). CONFIDENTIAL INFORMATION includes any information that is clearly identified as confidential, and any written or oral information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential.  Such CONFIDENTIAL INFORMATION includes, but is not limited to, product proposals, technological processes, product forecasts, trade secrets, pre-publication patent applications, product designs, pricing information, software designs, hardware or system designs, technology specifications, source code, object code, graphic designs, report templates, proprietary financial information, systems architecture, and systems functionalities.  CONFIDENTIAL INFORMATION also includes all copies, summaries and extracts of any CONFIDENTIAL INFORMATION. CONFIDENTIAL INFORMATION shall not include information that (i) is or becomes a part of the public domain through no act or omission of YOURS; (ii) was rightfully in YOUR possession prior to the disclosure and had not been obtained by YOU either directly or indirectly from the OMNITURE; (iii) is rightfully disclosed to YOU by a third party without restriction on disclosure; (iv) is independently developed by YOU without use of or reference to OMNITURE's CONFIDENTIAL INFORMATION.  YOU agree to use commercially reasonable care (but in no case less care than it uses to protect its own CONFIDENTIAL INFORMATION) to prevent the disclosure of the Confidential Information to any third party.  YOU may disclose CONFIDENTIAL INFORMATION to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, that YOU first have given sufficient and prompt written notice to OMNITURE of the receipt of any subpoena or other request for such disclosure; and shall have made a reasonable effort to obtain a protective order requiring that the CONFIDENTIAL INFORMATION so disclosed be used only for the purposes for which the order was issued. 

DISCLAIMER OF WARRANTIES

YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THE SITE, INCLUDING THE INFORMATION, SERVICES, AND CONTENT (AS DEFINED HEREIN) IS PROVIDED ON AN "AS IS" "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. OMNITURE DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. OMNITURE MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES AS TO THE USEFULNESS QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE SITE.  YOU ASSUME ALL RISK FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM OBTAINING ANY CONTENT FROM THE SITE, INCLUDING ANY DAMAGES RESULTING FROM COMPUTER VIRUSES.

OMNITURE MAKES NO WARRANTY OR REPRESENTATION THAT: (I) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (II) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, CONTENT, INFORMATION, OR OTHER MATERIAL OBTAINED FROM THE SITE WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS; OR (IV) ANY ERRORS IN THE SITE WILL BE CORRECTED.

LIMITATION OF LIABILITY

TO THE FULL EXTENT PERMITTED BY LAW, OMNITURE IS NOT LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA, ELECTRONICALLY TRANSMITTED ORDERS, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN CONNECTION WITH THE SITE, EVEN IF OMNITURE HAS PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES, HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), INCLUDING WITHOUT LIMITATION DAMAGES DUE TO: (I) THE USE OF OR THE INABILITY TO USE THE SITE; (II) VIOLATION OF ANY THIRD PARTY'S RIGHT TO PRIVACY, OR APPLICABLE PROVAY REGULATION; (III) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE, INCLUDING WITHOUT LIMITATION UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, MALICIOUS OR CRIMINAL BEHAVIOR, OR FALSE OR FRAUDULENT TRANSACTIONS; OR (IV) CONTENT OR INFORMATION YOU MAY DOWNLOAD, USE, MODIFY OR DISTRIBUTE. TO THE EXTENT THAT ANY JURISDICTION DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, PORTIONS OF THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.

INDEMNIFICATION

YOU agree to defend any claim or lawsuit against OMNITURE (i) that YOUR actions in connection with the SITE violate any third party’s rights of privacy, or violate any privacy laws; (ii) arising from or relating to the CONTENT; and/or (iii) arising from YOUR use of the SITE.  Customer will, in either case, indemnify OMNITURE (and its directors, employees and agents) against all costs, damages, losses, liabilities, and expenses (including attorneys' fees and costs) awarded against OMNITURE or agreed to in a written settlement agreement signed by YOU arising out of such claim. 

CONTROLLING LAW AND JURISDICTION

These Terms of Use and any action related thereto will be governed by the laws of the State of Utah without regard to its conflict of law provisions. The exclusive jurisdiction and venue of any action arising under these Terms of Use or related thereto will be the state and federal courts located in Salt Lake County, Utah, and each of the parties hereto waives any objection to jurisdiction and venue in such courts.  

Any express waiver or failure to exercise promptly any right under the TERMS OF USE will not create a continuing waiver or any expectation of non-enforcement. If any provision of the TERMS OF USE is held invalid by any law or regulation of any government, or by any court or arbitrator, the parties agree that such provision will be replaced with a new provision that accomplishes the original business purpose, and the other provisions of the TERMS OF USE will remain in full force and effect.

Omniture is a registered trademark of Omniture, Inc.  Omniture product and service names and logos not listed here are registered and unregistered trademarks of Omniture, Inc. in the United States, Canada, Japan, and the European Community.  Omniture products and services are licensed under the following NetRatings patents: 5,675,510, 5,796,952, 6,115,680, 6,108,637, 6,138,155, 6,643,696, and 6,763,386.
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