THIS KEYNOTE LLC ENTERPRISE SUBSCRIPTION AGREEMENT (“AGREEMENT”) IS A LEGAL AND NONEXCLUSIVE AGREEMENT. KEYNOTE LLC (“KEYNOTE”) IS WILLING TO PROVIDE THE SERVICES SELECTED BY CUSTOMER THROUGH KEYNOTE’S WEBSITE AND/OR INDICATED IN WRITTEN ORDERS BETWEEN THE PARTIES (EITHER OF WHICH ARE REFERRED TO AS AN “ORDER”), THE SERVICES REFERENCED THEREIN (THE “SERVICES”) AND ANY AUDIO OR VISUAL INFORMATION, DOCUMENTS, SOFTWARE, PRODUCTS AND SERVICES CONTAINED OR MADE AVAILABLE TO CUSTOMER IN THE COURSE OF USING THE SERVICES (THE “CONTENT”) ONLY TO PARTIES THAT ACCEPT ALL THE TERMS OF THIS AGREEMENT (THE CONTENT AND THE SERVICES ARE COLLECTIVELY REFERRED TO AS THE “KEYNOTE SERVICES”). BY USING THE KEYNOTE SERVICES, CUSTOMER IS AGREEING TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ANY CHANGES TO THIS AGREEMENT THAT KEYNOTE MAY PUBLISH FROM TIME TO TIME.
1. KEYNOTE SERVICES; CANCELLATION.
1.1 Keynote shall use its diligent and reasonable efforts to provide the Keynote Services requested by Customer in Orders hereto. Keynote grants Customer a non-exclusive subscription to use the Keynote Services only as set forth in this Agreement.
1.2 The Keynote Services will be provided during the subscription term set forth in the applicable Order. Except as set forth in an Order, Orders are not eligible for cancellation or reduction during the subscription term. Written notification to cancel and/or reduce an Order prior to any renewal must be received by Keynote at least thirty (30) days prior to the end of the Order’s then-current subscription term and must be emailed to email@example.com. Verbal cancellations are not acceptable. Written notifications to locations other than the email address listed above will result in continued charges for which the Customer will be held responsible.
2. OWNERSHIP, DATA AND ARCHIVING. Keynote retains all right, title and interest in and to the Keynote Services and Public Data (as defined below), as well as all intellectual property rights, including, without limitation, all copyright, trademarks, moral and related rights. Keynote may use Public Data for any purpose and in any manner. Customer shall retain all right, title and interest in and to Private Data (as defined below) and Application Data (as defined below), as well as all intellectual property rights, including, without limitation, all copyright, trademarks, moral and related rights. “Public Data” shall mean any and all measurement data generated by the Services from the measurement of a website and/or application generally accessible by the general public over the public Internet. “Private Data” shall mean any measurement data generated by the Services from the measurement of a website and/or application not generally accessible by the general public or a Keynote provided hardware or software private agent or a Keynote load testing agent. Public Data and Private Data shall be collectively referred to as “Measurement Data.” The term “Application Data” shall mean any data input or output by Customer using Keynote’s DeviceAnywhere services (the “Application Data”). Customer acknowledges and agrees that nothing herein is intended to restrict and/or prohibit Keynote from independently using the Keynote Services, for itself or its other customers, to gather information and performance measurement data from the Internet, including Customer’s public websites and/or applications. Customer may download and store Public Data on Customer’s computer equipment, and make copies of Public Data, for its own internal use only. Keynote shall archive all Measurement Data for six (6) weeks from the date of measurement. Keynote can only control Keynote’s servers and therefore Keynote cannot guarantee delivery of all Measurement or Application Data requested by Customer.
3. DEVICEANYWHERE PUBLIC DEVICE USAGE. Keynote will make reasonable efforts to automatically delete all Application Data on publically available mobile devices between successive test sessions (i.e., in the time between one (1) user releasing a mobile device and another user accessing the same mobile device); provided however, protection and removal of all Application Data from a publically available mobile device is ultimately Customer’s responsibility. Keynote shall not be liable for any breach of confidentiality or leakage of Application Data due to any Application Data knowingly or unknowingly being left on a publically available mobile device. Typically, only one (1) user may access a publicly available mobile device at a time and no other user may remotely view a publically available mobile device screen. If two (2) or more publically available mobile devices are interacting with each other (e.g., playing a multi-player game, in a video conference, or otherwise engaging in networked communication over Wi-Fi or a cellular network, etc.), it is Customer’s responsibility to ensure that all relevant publically available mobile devices have been engaged in the session, so another user may not access them and view any Customer Application Data.
4. PAYMENT TERMS; PREPAID ACCESS HOURS; AND OVERDUE ACCOUNTS. Except as otherwise set forth in an Order, Customer and Keynote agree as follows:
4.1 Payment terms are net thirty (30) days from receipt of Keynote’s invoice. Failure to pay within terms will result in a charge of 1.5% per month (18% per year) finance charge or the highest amount permissible by law, whichever is less, and are subject to collection. All costs and/or fees incurred to collect past due balances will be the responsibility of Customer.
4.2 For Orders with prepaid hours for access to publically available DeviceAnywhere banks, Keynote will issue a monthly statement detailing usage and hours remaining for the subscription term of the applicable Order. Hours are accrued in six (6) minute increments (or 1/10th of an hour). Any unused hours remaining at the end of the subscription term automatically expire and may not be used by Customer to access any Keynote Services after the expiration of the Order’s subscription term.
4.3 Keynote reserves the right to block and/or cancel service to Customers with overdue accounts and to impose a reconnection fee in the event Customer’s account is suspended and Customer thereafter requests restored access to the Keynote Service.
5. OBLIGATIONS OF CUSTOMER
5.1 Except for the intended purpose of the Keynote Services as provided on Keynote's website or other applicable reference material from Keynote and as expressly set forth herein, Customer agrees not to: (a) license, sublicense, rent, lease, barter, resell, commercially exploit, or otherwise make available the Keynote Services to any third party entity or individual; (b) modify or reverse engineer a Keynote Service for the purpose of creating a derivative work based on the Keynote Services; (c) run automated scripts against Keynote’s servers, except for Keynote bulk data delivery services, Keynote API services and/or DeviceAnywhere automated testing services. Any violation of this provision may result in additional charges and/or cancellation of Customer's rights to receive Keynote Services, at Keynote's sole discretion.
5.2 Customer is responsible for all activity occurring under its Keynote Services account and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with any use of the Keynote Services.
5.3 When using the Keynote Services, Customer agrees not to: (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material or in violation of third party privacy rights; (c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (d) interfere with or disrupt the integrity or performance of the Keynote Services, including but not limited to re-flashing mobile devices without the express permission of Keynote, altering the security code of publicly available mobile devices, or otherwise rendering publically available mobile devices unusable by other customers of the Keynote Services (in any such instance Customer will be responsible for all costs to replace and reintegrate any such mobile device); or (e) attempt to gain unauthorized access to the Keynote Services or its related systems or networks.
5.4 Customer hereby consents to Keynote’s inclusion of Customer’s name and logo in a customer listing as part of Keynote’s website and/or marketing materials.
6. THIRD PARTY INTERACTIONS. During use of the Keynote Services, Customer may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Keynote Services. Any such activity, and any terms, conditions, warranties or representations associated therewith are solely between Customer and the applicable third party. Keynote and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between Customer and any such third party.
7. KEYNOTE SERVICES STANDARD SUPPORT. Standard support shall be provided at no charge by Keynote to Customer for the Keynote Services and shall consist of web-based support from 8:00 a.m. to 5:00 p.m., Monday through Friday, in Customer’s local time zone, excluding applicable holidays, in accordance with Keynote’s then-current policies for such support. Higher levels of support are available for an additional fee.
8. TERM AND TERMINATION
8.1 This Agreement is effective when accepted by Customer and shall continue for as long as Customer uses the Keynote Services according to the terms and conditions of this Agreement. Either party may terminate this Agreement immediately upon written notice to the other party in the event the other party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days of receiving written notice describing such breach.
8.2 Upon termination of this Agreement for any reason, the rights granted to Customer in Section 1 shall end and Customer shall immediately cease using the Keynote Services. Sections 2, 3, 5.1, 6, 9, 10, 11 and 12 shall survive any termination of this Agreement.
9.1 Keynote warrants that during the term of this Agreement, Keynote shall perform the Keynote Services in a diligent manner and in accordance with industry standards.
9.2 EXCEPT FOR THE FOREGOING WARRANTIES IN SECTION 9.1, THE KEYNOTE SERVICES ARE PROVIDED ‘AS IS’ AND KEYNOTE MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WRITTEN OR ORAL, OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. KEYNOTE DOES NOT WARRANT THE RESULTS OF ANY KEYNOTE SERVICE OR THAT ANY ERRORS IN THE KEYNOTE SERVICES WILL BE CORRECTED. KEYNOTE CANNOT GUARANTEE AND DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF OR RESULTS TO BE OBTAINED FROM THE KEYNOTE SERVICES DELIVERED TO CUSTOMER OR THAT THE KEYNOTE SERVICES ARE TRANSMITTED TO CUSTOMER WITHOUT INTERRUPTION OR DELAY OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
10.1 Keynote agrees to indemnify, defend and hold harmless Customer from and against any and all costs, liabilities, losses and expenses, including, but not limited to, reasonable attorneys' fees, arising out of any claim, suit, action or proceeding brought by a third party against Customer that the Keynote Services infringe, misappropriate, or violate any intellectual property rights of any third party.
10.2 Customer agrees to indemnify, defend and hold harmless Keynote from and against any and all costs, liabilities, losses and expenses, including, but not limited to, reasonable attorneys' fees, arising out of or in connection with any claim, suit, action or proceeding brought by a third party against Keynote (a) alleging that the Private Data and/or Application Data infringes, misappropriates, or violates any intellectual property rights of any third party; (b) related to Customer’s misuse of the Keynote Services, not in accordance with the terms of this Agreement or any Order; or (c) related to Customer’s misuse, summarization or dissemination of Public Data not in accordance with the terms of this Agreement or any Order.
11. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, THE COSTS OF PROCURING SUBSTITUTE SERVICES OR FOR ANY LOSS OF PROFITS OR DATA, OR FOR ANY PUNITIVE DAMAGES, OR OTHERWISE, NOTWITHSTANDING ANY FAILURE OF THE KEYNOTE SERVICES TO BE RENDERED HEREUNDER, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE CONSEQUENCES OF LATE DELIVERY, UNAVAILABILITY, OR NON-PERFORMANCE, REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY. IN NO EVENT WILL EITHER PARTY’S MAXIMUM LIABILITY UNDER THIS AGREEMENT AT ANY TIME EXCEED THE AMOUNTS PAID TO KEYNOTE UNDER THIS AGREEMENT DURING THE PRECEDING TWELVE (12) CALENDAR MONTHS. THE PRECEDING LIMITATION OF LIABILITY DOES NOT APPLY TO THIRD PARTY CLAIMS FOR WHICH AN INDEMNITY IS OWED.
12.1 This Agreement is not transferable or assignable by Customer, in whole or in part, whether voluntarily or by merger, consolidation, or sale, or otherwise by operation of law without the prior written consent of Keynote which shall not be unreasonably withheld. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors, heirs and assigns.
12.2 Except as otherwise provided, any notice or other communication required or permitted under this Agreement shall be in writing and delivered in person, mailed or delivered by recognized courier service, properly addressed and stamped with the required postage, to the intended recipient at the address specified in this Agreement or an Order and shall be deemed effective upon receipt. Either party may from time to time change its address by giving the other party notice of the change in accordance with this Section.
12.3 The failure of either party to insist upon strict performance of any of the terms and conditions hereunder or waiver by either party in the exercise of any of its remedies shall not constitute a subsequent waiver of such terms and conditions or a waiver of any default or remedy.
12.4 This Agreement shall be governed by the laws of the state of Delaware, excluding its body of law relating to conflicts of law and excluding the application of the United Nations Convention on International Contracts for the Sale of Goods. In any legal action to enforce the terms of this Agreement, or arising out of an obligation to pay money subject to this Agreement, the prevailing party shall be awarded all court costs and reasonable attorneys’ fees incurred.
12.5 In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, such provision shall be deemed to apply only to the maximum extent permitted by law, and the remainder of this Agreement shall remain valid and enforceable according to its terms. This Agreement may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument. This Agreement and any Orders constitute the entire agreement between the parties with respect to the subject matter hereof, and supersede all prior proposals, negotiations, communications and agreements, whether oral or written, between the parties with respect to the subject matter hereof. In the event of a conflict between this Agreement and any other form or correspondence, the terms and conditions of this Agreement shall control. Any modifications to this Agreement must be in writing and signed by both parties.
12.6 The Services, Content and Public Data are subject to United States (U.S.) laws including export control laws and regulations. Keynote prohibits the export and re-export of its Services, Content and Public Data to persons and destinations subject to U.S. embargoes or trade sanctions. By accepting this Agreement and receiving the Services, Content and/or Public Data, Customer confirms that it and its employees and agents who may access the Content, Services and Public Data are not listed on any governmental export exclusion lists and will not export or re-export the Content or Public Data to any country embargoed by the U.S. or to any Specially Denied National (SDN) or denied entity identified by the U.S. Customer will comply with all applicable export laws and obtain all licenses to export, re-export, or import as may be required after delivery to Customer.