AppExchange

Kieden User Agreement
February 19, 2006

Welcome to the KIEDEN, Inc. web site (the "Site"). This user agreement specifies the terms and conditions under which KIEDEN, Inc. agrees to provide the user (“You”) or (“Your”) with access to the Site. If you want to access the Site to create advertisements on selected third party ad networks, including but not limited to Google AdWords, Yahoo! Search Marketing, and Microsoft AdCenter (“Third Party Ad Networks”) to track information relating to your search marketing campaigns, or use other services we provide collectively, ("Services"). You must accept this user agreement ("Agreement") in its entirety, including all of its terms and conditions. By checking the “I Accept” checkbox displayed as part of the registration process, you agree to the terms and conditions set forth by agreement. You will not be granted access to the Services unless you accept these terms.

By accepting the terms of this Agreement, you represent that you are and will be in compliance with all terms, conditions, and policies of Third Party Ad Networks you select on the Site and SalesForce.com (“Third Party Terms”). You must remain compliant with Third Party Terms during the course of this Agreement as the same may be modified, altered, and/or amended from time to time.

We may amend this Agreement at any time by posting the amended terms and conditions on the Site. Unless otherwise indicated, all amended terms shall automatically be effective fourteen (14) days after they are initially posted on the Site. Your continued use of our Services constitutes an affirmative acceptance of this Agreement, including without limitation any modifications or changes thereto. You are responsible for reviewing and becoming familiar with any changes. This agreement was last revised on February 19, 2006. KIEDEN, in its sole discretion, may add, delete, or modify some or all of the features of the Site or Services at any time. We shall not be liable to you or any third party should we exercise our right to modify or discontinue the Site or Services.

1. Eligibility; Registration.

1.1 Use of the Services is limited to parties that lawfully can enter into and form contracts under applicable law. Without limiting the foregoing, the Services are not available to minors. Further, the Services are not available to parties whose use of the Services has been suspended or terminated.

1.2 To use the Services, you must complete the registration form on behalf of yourself or the corporation, partnership or other legal entity that will be using the Services. By accepting this Agreement, you represent that (a) you are eighteen (18) or older and, if applicable, (b) you are authorized to sign for and bind the corporation, partnership or other legal entity that will be using the Services. You shall provide current, complete and accurate registration information (including email address and credit card information), and then update the information as required to keep the registration information current, complete and accurate.

1.3 As a subscription service, KIEDEN may require you to provide account identification and/or authentication information for multiple payment alternatives including, but not limited to, credit card, debit card, automatic deduction from your bank account, and bill payment services such as PayPal. By providing such payment alternatives to KIEDEN, you are explicitly authorizing KIEDEN to charge one or more of these payment sources to pay for your use of the Services. You must keep your registration information current, complete and accurate, especially your email address and your payment information.

2. Passwords and Security.

You shall at all times maintain the confidentiality of your usernames and passwords. If you are a corporation, partnership or other legal entity, you may allow employees to use usernames and passwords, provided that you are responsible for all activity and all charges by such employees. You will be liable for any unauthorized use of the Services until you notify KIEDEN in writing of the security breach. You agree to immediately notify KIEDEN of any unauthorized use of your account or any other breach of security known to you.

3. Fees and Payment Terms.

The fees are set forth in the Payment Terms (http://www.kieden.com/tos/payment.html), which are incorporated by reference. KIEDEN reserves the right to modify the Payment Terms at its sole discretion. Changes to the Payment Terms are effective immediately unless otherwise indicated, and it is your responsibility to check for any changes. You agree to pay KIEDEN for using Services in accordance with the then current Payment Terms. All fees are payable in U.S. Dollars unless stated otherwise and will not be treated as paid until actually received by KIEDEN in same-day and freely available funds.

4. User Conduct.

4.1 You agree to comply with all applicable laws, statutes, ordinances and regulations relating to, applying to, or governing use of Services. You may not use Services to engage in fraud or other illegal activity, or to infringe the intellectual property rights of others. You may not engage in any conduct violating Third Party Terms. You agree to indemnify and hold KIEDEN harmless from and against any and all claims, damages, losses or obligations suffered or incurred by KIEDEN arising from your failure to so comply.

4.2 You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any activity conducted on the Site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure or limits our ability to provide the Services. You agree that you will not collect copy, reproduce, alter, modify, create derivative works, or publicly display any content or information from the Site without the prior expressed written permission of KIEDEN or the appropriate third party. You agree that you will not use any robot, spider, or other automatic device or routine to access or interface with the Site.

4.3 You shall not, and shall not authorize any party to: (a) generate automated, fraudulent or otherwise invalid impressions or clicks; or (b) advertise anything illegal or engage in any illegal or fraudulent business practice with the Service. You represent and warrant that (c) all your information is correct and current; (d) you hold and grant Kieden and Third Party Ad Networks all rights to copy, distribute and display your ads. Violation of these policies may result in immediate termination of this Agreement or your account without notice.

4.4 Invalid clicks are clicks generated by prohibited methods. Examples of invalid clicks may include repeated manual clicking or the use of robots, automated clicking tools, or other deceptive software. Invalid clicks are sometimes intended to artificially and/or maliciously drive up an advertiser's clicks and or a publisher's earnings. Sources of invalid clicks may include:
• Manual clicks intended to increase your advertising costs or to increase profits for website owners hosting your ads.
• Clicks by automated tools, robots, or other deceptive software.
Third party ad networks closely monitor these and other scenarios to help protect advertisers from receiving invalid clicks and each have their own invalid clicks policies. In the event you suspect fraudulent activity, you are required to immediately notify the third party ad network immediately. If you believe that your account reports reflect clicks that are more extreme than ordinary user behavior or that exhibit strange patterns, please contact the appropriate third party ad network provider.

Third party ad networks have a team that investigates invalid click activity on a case-by-case basis. To expedite their investigation, please include the following information in your email to them:
1. The campaign(s), Ad Group(s), and/or keyword(s) associated with the suspicious clicks.
2. The date(s) and time(s) of the suspicious click activity.
3. Any data in your weblogs or reports that indicate suspicious IP addresses, referrers, or requests.
4. A paragraph describing the trends in logs and/or reports that led you to believe the click activity is invalid.
The verification and research process can be time consuming, and your patience is appreciated while the investigation team reviews your account. Please allow 3-5 business days for them to respond. If you have any additional information, please be sure to include it in your report.

5. Your Ad Content.

5.1 "Your Ad Content" is defined as any information you provide (directly or indirectly) to KIEDEN to obtain Services. You are solely responsible for Your Ad Content, and we transmit Your Ad Content to a Third Party Ad Network for publishing.

5.2 You are responsible to ensure that Your Ad Content complies with all Third Party Terms and by accepting the terms of this Agreement, you are certifying that Your Ad Content complies with Third Party Terms.

5.3 By using the Services, you authorize KIEDEN to access Third Party Ad Networks, on your behalf, to retrieve and post information necessary to provide the Services to you. You hereby acknowledge that Services may or may not provide all the information and functionality that you could obtain directly from the Third Party Ad Networks.

6. Intellectual Property.

6.1 As between you and KIEDEN, KIEDEN acknowledges that it claims no proprietary rights to Your Ad Content.

6.2 As between you and KIEDEN and its licensors, you acknowledge and agree that KIEDEN and its licensors own all right, title, and interest in (i) services, (ii) the technology available through the services, and (iii) all content (including, without limitation, text, photographs, video, and graphics) except Your Ad Content and all copyright, trade secret, patent, trademark, and other intellectual property rights therein. Any use of the KIEDEN content other than to create and operate the Site within the scope of the Services is not licensed and strictly prohibited. You agree that you will not upload, transmit, reproduce, distribute, or in any way exploit any KIEDEN content obtained through the Services without first obtaining the express permission to do so from KIEDEN. This Agreement does not constitute a license to use KIEDEN’s trade names, service marks, or any other trade insignia. Any use of any of KIEDEN’s trade names, service marks, or any other trade insignia shall be subject to KIEDEN’s prior written consent.

6.3 Subject to the terms and conditions of this Agreement, KIEDEN grants a limited license to you to make personal use of the Site and the Services only for their intended purposes. This license expressly excludes any resale of the Site and the Services, making any derivative of the Site or the Services, or any data extraction or data mining whatsoever, except with the express consent of the owner of such materials.

7. Service Levels

7.1 Kieden does not guarantee the Service will be operable at all times or during any down time (1) caused by outages to any public Internet backbones, networks or servers, (2) caused by any failures of Your equipment, systems or local access services, (3) for previously scheduled maintenance or (4) relating to events beyond Kieden’s control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Kieden or Third Party Ad Networks are located or co-located. Complete accuracy in all aspects of statistics at all times is not guaranteed.

7.2 Some Kieden releases or features will be identified as “Beta”. Beta features or releases are provided “as is” and should be used at your option and risk. You acknowledge that Beta services are provided for evaluation purposes and may contain significant errors and/or defects for which Kieden is not obligated to provide any direct support. There will be an increased frequency of maintenance windows for Beta releases. Maintenance windows for Beta releases will likely be between the hours of 12am and 4am PST. You shall not disclose to any third party any information from, existence of or access to Beta releases or features.

8. Termination.

8.1 You may terminate this Agreement at any time. During this process, you may be asked to contact KIEDEN via telephone during normal business hours to complete the termination and to ensure that the termination process is completed quickly and effectively. If you were registered for any paid services, your last bill from KIEDEN will be for the month in which you have canceled the Service. KIEDEN, in its sole discretion, may terminate this Agreement or suspend or terminate your access to the Site or the Services immediately without notice for any reason including, without limitation, for your infringement of the intellectual property rights of others. All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, provisions related to intellectual property, warranty disclaimers, general releases, limitations of liability, indemnity and the general provisions.

8.2 Without limiting other remedies, Kieden may immediately issue a warning, temporarily suspend, indefinitely suspend, or terminate your access to the Site and Services at Kieden’s sole discretion. Services may be terminated immediately without notice for any reason including, without limitation, your infringement of any intellectual property rights of others, or your breach of any terms of this Agreement.

9. Privacy.

KIEDEN is committed to protecting your privacy and we will only use and disclose Your Materials in accordance with our Privacy Policy (http://www.kieden.com/privacy) which is incorporated herein by reference.

10. No Warranties/Liabilities.

KIEDEN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION FOR NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. KIEDEN SHALL NOT BE LIABLE FOR ANY LOSS, COST, DAMAGE OR EXPENSE (INCLULDING ATTORNEY FEES) INCURRED BY YOU IN CONNECTION WITH YOUR PARTICIPATION IN THE SERVICE. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY TECHNICAL MALFUNCTION, COMPUTER ERROR OR LOSS OF DATA OR OTHER INJURY, FAILURE OR INTERRUPTION OF SERVICE. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL, SPECIAL OR EXEPLARY DAMAGES ARISING OUT OF OR IN RELATION TO THIS AGREEEMENT. IN FURTHERANCE OF, BUT WITHOUT LIMITING THE FOREOING: (A) KIEDEN ACKNOWLEDGES THAT THE SITE IS PROVIDED ON AN “AS IS” BASIS AND THAT YOU MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE USEFULNESS, ACCURACY, COMPLETENESS, FEASIBILITY, RELIABILITY OR EFFECTIVENESS OF THE SITE OR THAT THE OPERATION OF THE SITE WILL MEET THE OBJECTIVES OF YOU OR ANY THIRD PARTY, OR THAT THE OPERATION OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE; AND (B) YOU ACKNOWLEDGE THAT KIEDEN PROVIDES THE SERVICE ON AN “AS IS” BASIS AND THAT KIEDEN MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE USEFULNESS, ACCURACY, COMPLETENESS, FEASIBILITY, RELIABILITY OR EFFECTIVENESS OF THE SERVICE OR THAT THE OPERATION OF THE SERVICE WILL MEET THE OBJECTIVES OF COMPANY OR ANY THIRD PARTY, OR THAT THE OPERATION OF THE SERVIE WILL BE UNINTERRUPTED OR ERROR-FREE.

11. General Release.

YOU RELEASE KIEDEN (AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES,) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. FURTHER, YOU WAIVE ANY RIGHTS YOU MAY HAVE UNDER CALIFORNIA CIVIL CODE § 1542 (OR ANY OTHER SIMILAR STATUTE) WHICH STATES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR A THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."

12. Indemnity.

You hereby agree to, at your own expense, indemnify, defend and hold KIEDEN and our subsidiaries, affiliates, officers, directors, agents, and employees harmless from and against any and all claims, actions, losses, damages, liability, costs and expenses (including but not limited to reasonable attorneys’ fees and expert fees) arising out of or relating to (a) a third-party claim, action or allegation of infringement, misuse or misappropriation based on information, data, files or other content submitted by you to the Site; (b) any fraud, manipulation, or other breach of this Agreement by you; (c) any third-party claim, action or allegation brought against KIEDEN arising out of or relating to a dispute with you over the terms and conditions of an agreement or related to the purchase or sale of any goods or services; (d) your violation of any law or the rights of a third party; (e) your violation of any Third Party Terms; (f) your use, or KIEDEN's provision, of the Services or use of your account by any third party; or (g) any item or service advertised in connection with Your Ad Content. KIEDEN reserves the right to participate in its defense and hire counsel of its choice, but shall have no obligation to do so. You will not settle any action or claims on KIEDEN's behalf without the prior written consent of KIEDEN.

13. General.

This Agreement is not assignable, transferable or sub-licensable by you without KIEDEN's prior written consent, and any such conveyance shall be null and void. KIEDEN may assign this Agreement in whole or in part. This Agreement shall be governed by and construed in accordance with the laws of the state of California without regard to conflicts of laws provisions thereof. The sole jurisdiction and venue for actions related to the subject matter hereof shall be the California State and U.S. federal courts having within their jurisdiction the location of KIEDEN's principal place of business. You expressly consent to (a) the jurisdiction of such courts; and (b) service of process being affected upon you by registered mail sent to the address you provide KIEDEN in connection with your Services, as may be changed by written notice actually received by KIEDEN. Unless prohibited by the law of your jurisdiction, you waive any requirement that service of process or of any documents be made upon you pursuant to the provisions of the Hague Convention. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof. You agree and acknowledge that this is an entire agreement between you and KIEDEN and you are not entering into this agreement in reliance on any statements or representations other than those set forth herein. Should any term or condition be in conflict between this Agreement and any document incorporated by reference into this Agreement, the terms of this Agreement shall control.