THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS THAT APPLY TO YOUR ACQUISITION AND USE OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL, THIS AGREEMENT WILL ALSO APPLY TO THAT FREE TRIAL.
WE AUTHORIZE USE OF THE KEYNOTE SERVICES ONLY BY PARTIES THAT ACCEPT ALL THE TERMS OF THIS AGREEMENT. BY USING THE KEYNOTE SERVICES, CLICKING A BOX INDICATING YOUR ACCEPTANCE OR SIGNING AN ORDER THAT REFERS TO THIS AGREEMENT, YOU ARE AGREEING TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ANY CHANGES TO THIS AGREEMENT THAT WE MAY PUBLISH FROM TIME TO TIME. WE WILL GIVE NOTICE OF CHANGES TO THIS AGREEMENT BY POSTING AT WWW.KEYNOTE.COM/LEGAL OR ITS SUCCESSOR WEBSITE. BY ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU ARE AUTHORIZED TO DO SO.
THIS AGREEMENT AND THE ORDERS REPRESENT OUR ENTIRE UNDERSTANDING REGARDING THE KEYNOTE SERVICES AND SHALL CONTROL OVER ANY DIFFERENT OR ADDITIONAL TERMS OF ANY PURCHASE ORDER OR OTHER NON-KEYNOTE ORDER FORMS, AND NO TERM IN SUCH PURCHASE ORDERS OR ORDER FORMS WILL APPLY.
This Agreement was updated on February 12, 2015.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for the purpose of this definition means direct or indirect ownership or control of more than 50% of the voting interests of such entity.
“Agreement” means this Keynote End User License Agreement, and any applicable addenda or Supplemental Terms for specific Keynote Services.
“Application Data” means any data input or output by You using Keynote’s Mobile Testing Services.
“Content” means any third-party audio or visual information, documents, software, products and services contained or made available to You in the course of using the Keynote Services.
“Customer” as used in an Order has the same meaning as You or Your under this Agreement.
“Documentation” means Our user guides, documentation, and help and training materials, as updated from time to time and accessible through Our website or by login to the applicable Keynote Service.
“Keynote Services” means the software, products and services that are ordered by You under a free trial or an Order and made available to You by Us, as described in the Documentation.
“Order” means an ordering document submitted online or in written form, specifying the Keynote Services to be provided to You, entered into between You and Us, including any addenda or exhibits.
“Private Data” means any measurement data generated by the Keynote 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” means any and all measurement data generated by the Keynote Services from the measurement of a website and/or application generally accessible by the general public over the public Internet.
“Subscription Term” means the initial term and any automatic renewal term as set forth in an Order.
“User” means an individual who is authorized by You to use a Keynote Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
“We”, “Us”, “Our” “Company” or “Keynote” means Keynote LLC, a Delaware limited liability company.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
2. PROVISION OF KEYNOTE SERVICES.
2.1 We grant You a non-exclusive, non-transferable (without right to sublicense) limited license to use the Keynote Services only as set forth in this Agreement during the Subscription Term specified in the applicable Order. If You are a direct competitor of Keynote, You may not access the Keynote Services except with Our prior written consent.
2.3 If You register on Our website for a free trial, We will make the applicable Keynote Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period specified or (b) the date on which You purchase a subscription to such Keynote Services. Additional terms applicable to Your free trial may appear on the registration page and are incorporated by reference into this Agreement. There is no guarantee that any data You enter in the course of a free trial or any personalization or customization made to the Keynote Services by or for You during the free trial will be preserved unless You purchase upgraded Keynote Services before the end of the trial. NOTWITHSTANDING SECTION 9, ALL KEYNOTE SERVICES PROVIDED AS A FREE TRIAL ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY.
2.4 From time to time, We may invite You to try at no charge a Beta Service, which means a service not generally available to customers. Beta Services are not Keynote Services under this Agreement. You may accept or decline any Beta trial in Your sole discretion. Beta Services will be identified as beta, pre-release, preview, non-production, early access, evaluation or other similar phrases. Beta Services are for evaluation purposes and not production use, are not supported and may be subject to additional terms. Unless otherwise specified, a Beta Services trial period will expire on the earlier of notice from Keynote, sixty (60) days from the trial start date or the date that a version of the Beta Service becomes generally available. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or related to a Beta Service.
3. OWNERSHIP, DATA AND ARCHIVING.
3.1 We retain all right, title and interest in and to the Keynote Services and Public Data, as well as all related intellectual property rights, including, without limitation, all copyright, trademarks, moral and related rights. We may use Public Data for any purpose and in any manner. You retain all right, title and interest in and to Private Data, as well as all related intellectual property rights, including, without limitation, all copyright, trademarks, moral and related rights. Public Data and Private Data are collectively referred to as “Measurement Data.” You acknowledge and agree that nothing herein is intended to restrict and/or prohibit Us from independently using the Keynote Services, for Ourselves or Our other customers, to gather information and performance measurement data from the Internet, including Your public websites and/or applications. You also acknowledge and agree that We may monitor Your use of the Keynote Services and use the Measurement Data in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Keynote Services, and make such information publicly available. You may download and store Public Data on Your computer equipment, and make copies of Public Data, for Your internal use only. We will use commercially reasonable efforts to archive and make available to You all Measurement Data for six (6) weeks from the date of measurement. We do not guarantee delivery of all Measurement Data (or, in the case of Mobile Testing, Application Data) requested by You, which may include Data stored on Your systems or otherwise not under Our control.
3.2 We 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 Your responsibility. We will 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 Your 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 Your Application Data.
4. YOUR OBLIGATIONS.
4.1 Except for the intended purpose of the Keynote Services as provided on Our website or other applicable reference material from Us and as expressly set forth herein, You agree that You and any User will not: (a) license, sublicense, rent, lease, barter, resell, commercially exploit, offer as a hosted or outsourced service, or otherwise make available the Keynote Services to any third party entity or individual; (b) render any services to third parties using the Keynote Services; (c) modify or reverse engineer a Keynote Service for the purpose of creating a derivative work based on the Keynote Services; or (d) run automated scripts against Keynote’s servers, except for Keynote bulk data feed services, Keynote API services and/or Mobile Testing Cloud automated testing services. Any violation of this provision may result in additional charges and/or cancellation of Your access to Keynote Services, at Our sole discretion.
4.2 You are responsible for all activity occurring under Your Keynote Services account and shall ensure that You and all Users abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with any use of the Keynote Services.
4.3 When using the Keynote Services, You agree that You and any User will not: (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, time bombs, Trojan horses or other harmful computer code, files, scripts, agents or programs; (d) copy a Keynote Service or any part, feature, function or user interface; (e) copy Content except as permitted herein or in an Order or Documentation; (f) frame or mirror any part of any Keynote Service or Content, other than framing on Your own intranet or otherwise for Your own internal business purpose or as permitted in the Documentation; (g) access any Keynote Service or Content in order to build a competitive product or service; (h) 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 publicly available mobile devices unusable by other customers of the Keynote Services (in any such instance You will be responsible for all costs to replace and reintegrate any such mobile device); or (i) attempt to gain unauthorized access to the Keynote Services or its related systems or networks.
4.4 You hereby consent to Our inclusion of Your name and logo in a customer listing as part of Our website and/or marketing materials.
4.5 From time to time, You may provide Us with suggestions, comments and other technical information relating to the Keynote Services (collectively “Feedback”). If You provide any Feedback, You grant to Us a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, fully paid up, sub-licensable license to make, have made, use, sell, import, copy modify, make derivative works of, distribute, transmit, disclose and otherwise exploit any Feedback, including as part of any product, technology or service offered by Us.
5. THIRD PARTY INTERACTIONS.
During use of the Keynote Services, You 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 as Content. Any such activity, and any terms, conditions, warranties or representations associated therewith are solely between You and the applicable third party. We and Our licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between You and any such third party.
6. TERM AND TERMINATION.
6.1 This Agreement is effective as of the date You click on a box indicating Your acceptance and shall continue for as long as you use the Keynote Services and Data according to the terms and conditions of this Agreement. Keynote shall have the right to terminate this Agreement and Your use of the Keynote Services without cause if no amounts have been paid for the Keynote Services.
6.2 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.
6.3 Upon termination of this Agreement for any reason, the rights granted to You in Section 2 shall end and You shall immediately cease using the Keynote Services. Sections 3, 5, 6, 7, 8, 9 and 10 shall survive any termination of this Agreement.
7.1 We warrant that during the term of this Agreement, We shall perform the Keynote Services in a diligent manner and in accordance with industry standards.
7.2 For breach of the express warranty set forth above, Your exclusive remedy shall be the re-performance of the deficient Keynote Services. If We cannot re-perform such deficient Keynote Services as warranted, You shall be entitled to recover a pro-rata portion of the fees, if any, paid to Us for such deficient Keynote Services, and such refund shall be Our entire liability.
7.3 EXCEPT FOR THE FOREGOING WARRANTIES IN SECTION 9.1, THE KEYNOTE SERVICES ARE PROVIDED ‘AS IS’ AND WE MAKE NO OTHER WARRANTY, EXPRESS OR IMPLIED, WRITTEN OR ORAL, OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THE RESULTS OF ANY KEYNOTE SERVICE, OR THAT ANY ERRORS IN THE KEYNOTE SERVICES WILL BE CORRECTED. WE CANNOT GUARANTEE AND DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF, OR THE RESULTS TO BE OBTAINED FROM, THE KEYNOTE SERVICES. WE DO NOT GUARANTEE OR WARRANT THAT THE KEYNOTE SERVICES WILL BE AVAILABLE TO YOU WITHOUT INTERRUPTION, DELAY OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
8.1 We will defend You against any claim, suit, action or proceeding brought by a third party against You alleging that the use (other than a free trial or Beta Service) of a Keynote Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Keynote Service, We may in Our discretion and at no cost to You (i) modify the Keynote Service so that it no longer infringes or misappropriates, (ii) obtain a license for Your continued use of that Keynote Service in connection with this Agreement, or (iii) terminate Your subscriptions for that Keynote Service on thirty (30) days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a non-Keynote application or service, or Your breach of this Agreement.
8.2 You agree to defend Us from any claim, suit, action or proceeding brought by a third party against Us (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 Your misuse of the Keynote Services, in violation of applicable law or not otherwise in accordance with the terms of this Agreement or any Order; or (c) related to Your misuse, summarization or dissemination of Measurement Data not in accordance with the terms of this Agreement or any Order (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for amounts paid by Us under a court-approved settlement of a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
8.3 This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 8.
9. LIMITATION OF LIABILITY.
9.1 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, REVENUES 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. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.2 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 (OR IF NO SUCH AMOUNTS HAVE BEEN PAID $10,000). THE PRECEDING LIMITATION OF LIABILITY DOES NOT APPLY TO THIRD PARTY CLAIMS FOR WHICH AN INDEMNITY IS OWED AND WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 4.
10.1 This Agreement is not transferable or assignable by You, in whole or in part, whether voluntarily or by merger, consolidation, or sale, or otherwise by operation of law without Our prior written consent which shall not unreasonably be withheld. We may assign this Agreement in its entirety (including all Orders) without Your consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of Our assets. 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.
10.2 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.
10.3 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.
10.4 This Agreement shall be governed by the laws of the state of California, 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. You irrevocably submit to the exclusive venue and jurisdiction of the state and federal courts of San Mateo County, California, U.S.A. over any claim, dispute or dispute or differences arising under or in connection with this Agreement. 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 attorney fees incurred.
10.5 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, Keynote Supplemental Terms relating to specific Keynote Services, 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 any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order, (2) this Agreement (including the Keynote Supplemental Terms, if applicable), and (3) the Documentation. 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. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Your Order) is void.
10.6 The Keynote Services, Content, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. You represent that You are not named on any U.S. government denied-party list. You shall not permit Users to access or use any Keynote Service or Content in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
10.7 You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department.
10.8 You may contact Us at Keynote LLC, 777 Mariners Island Boulevard, San Mateo, CA 94404.