THIS END USER LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AND NONEXCLUSIVE AGREEMENT. BY CLICKING ON THE “ACCEPT” BUTTON PROVIDED BELOW YOU ARE AGREEING TO BIND YOURSELF AND YOUR COMPANY, IF OBTAINED ON BEHALF OF YOUR COMPANY (INDIVIDUALLY AND COLLECTIVELY “YOU”), TO THE TERMS SET FORTH BELOW. THE FOLLOWING TERMS AND CONDITIONS SHALL APPLY TO YOUR USE OF THE KEYNOTE SOFTWARE (“SOFTWARE”), ACCOMPANYING DOCUMENTATION (“DOCUMENTATION”), AND NETWORK PERFORMANCE MEASUREMENTS (“DATA”).
1. LICENSE GRANT
1.1 Subject to the terms of this Agreement, Keynote hereby grants and you hereby accept a non-exclusive, non-transferable, limited license to install and use the Software and Documentation solely for your internal development and testing purposes. Notwithstanding the foregoing, if you are a direct competitor of Keynote the provisions of this Section 1.1 shall be rendered null and void and of no force and effect.
1.2 Keynote retains title to all Software and Documentation delivered under this Agreement. Except for the license grant provided in Section 1.1 above, no right, title, or interest in the Software or Documentation is granted or conveyed to you by implication or otherwise.
2. YOUR OBLIGATIONS
2.1 Except as expressly set forth herein, you agree not to (i) copy, sublicense, rent, lease, barter, resell, or otherwise distribute the Software or Documentation to any third party entity or individual; (ii) reverse engineer, modify, or create a derivative work or competitive product or service based upon the Software or Documentation; or (iii) generate excessive unsolicited traffic to third party sites. You have the right to make copies of the Software or Documentation as reasonably necessary for your internal use of the Software and Documentation and may make one backup copy of the Software and Documentation for archival purposes.
2.2 You acknowledge that Keynote can only control Keynote’s servers and therefore Keynote cannot guarantee delivery of all Data requested by you. You have the right to make copies of the Data as reasonably necessary for your internal use of the Data. Subject to the terms and conditions of this Agreement, you may publish and disseminate summaries of the Data to select third parties to verify service levels provided that you prominently and clearly attribute Keynote as the source of the Data or information on which such summaries are based. You agree to indemnify and hold Keynote harmless from any and all claims by third parties and all judgments, costs, and expenses, including reasonable attorney’s fees, arising from your use, summarization, or dissemination of any Data, including, without limitation, trade libel and slander.
2.3 Except for the intended purpose of the Software or Data as provided in the Documentation, on Keynote’s website or other applicable reference material, you agree not to run automated scripts (except for bulk Data delivery services) against Keynote’s systems, including but not limited to web properties, servers, databases, and/or networks. Any violation of this provision may result in changes, charges, and/or cancellation of your right to use the Software and receive Data from Keynote, at Keynote’s sole discretion.
2.4 You acknowledge that during your internal use of the Software you may have access to and use Keynote’s portals. Keynote’s portals and its subscription-based services are subject to the terms and conditions of the Keynote Systems Subscription Agreement posted at: http://www.keynote.com/legal/subscription.
3. TERM AND TERMINATION
3.1 This Agreement is effective when accepted by you (“Effective Date”) and shall continue for as long as you use the Software, Documentation or Data according to the terms and conditions of this Agreement. Keynote shall have the right to terminate this Agreement and your use of the Software and Documentation with or without cause.
3.2 Upon termination of this Agreement for any reason, the rights granted to you in Section 1 shall end and you shall immediately cease using the Software and Documentation. Sections 1.2, 3, 4, 5, and 6 shall survive any termination of this Agreement.
THE SOFTWARE, DOCUMENTATION, AND DATA IS PROVIDED TO YOU “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. KEYNOTE NEITHER ASSUMES, NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT, ANY OTHER LIABILITY IN CONNECTION WITH THE SOFTWARE, DOCUMENTATION, DATA, OR ANY OTHER INFORMATION, INCLUDING, WITHOUT LIMITATION, LIABILITY ARISING OUT OF THE DELIVERY, INSTALLATION, SUPPORT OR USE OF THE SOFTWARE, DOCUMENTATION, OR DATA. KEYNOTE DOES NOT WARRANT THE RESULTS OF THE SOFTWARE OR THAT ANY ERRORS IN THE SOFTWARE OR DOCUMENTATION WILL BE CORRECTED, OR THAT THE SOFTWARE, DOCUMENTATION OR DATA WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. KEYNOTE CANNOT GUARANTEE AND DOES NOT WARRANT THE ACCURACY OF THE DATA DELIVERED TO YOU OR THAT DATA IS TRANSMITTED TO YOU WITHOUT INTERRUPTION OR DELAY.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KEYNOTE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE IS DONE AT YOUR OWN RISK.
You assert and acknowledge that prior to execution of this Agreement you had sufficient opportunity to evaluate the Software, Documentation, and Data delivery to become familiar with their performance and operation.
5. LIMITATION OF LIABILITY
IN NO EVENT SHALL KEYNOTE AND/OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE, DATA, OR MACHINE USE, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SOFTWARE, DOCUMENTATION, OR DATA, OR THE PROVISION OF OR FAILURE TO PROVIDE SOFTWARE, DOCUMENTATION, OR DATA, REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, EVEN IF KEYNOTE AND/OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. KEYNOTE’S ENTIRE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED $10,000 U.S. DOLLARS. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER THE EVENTS WHICH GIVE RISE TO THE CAUSE OF ACTION OCCURRED.
6.1 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 the prior written consent of Keynote. 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.
6.2 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 its address specified in this Agreement 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.
6.3 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.
6.4 Neither party shall be liable to the other party for any alleged loss or damages resulting from delays in performance, except for the failure to pay money due, resulting from any cause beyond the reasonable control of or occurring without the fault of such party (including loss or damages resulting from the delay or failure to deliver Software, Documentation, or Data).
6.5 This Agreement shall be governed by the laws of the state of California, excluding both its body of law relating to conflicts of law and the United Nations Convention on 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.
6.6 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 constitutes 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.
6.7 The trademarks of Keynote LLC in the United States and other countries include Keynote®, DataPulse®, CustomerScope®, Keynote CE Rankings®, Keynote Customer Experience Rankings®, Perspective®, Keynote Red Alert®, Keynote Traffic Perspective ®, Keynote WebEffective®, The Internet Performance Authority®, MyKeynote® , SIGOS®, SITE®, keynote™ The Mobile & Internet Performance Authority™ and all related trademarks, trade names, logos, characters, design and trade dress are trademarks or registered trademarks of Keynote LLC in the United States and other countries and may not be used without written permission.
6.8 Keynote prohibits export and re-export of its products, services, software, technology and technical data to destinations subject to United States (U.S.) embargoes or trade sanctions. You agree to comply with all such laws and obtain all licenses to export, re-export, or import as may be required after delivery to you. The latest U.S. Export Administration Regulations (EAR) can be found at: http://www.access.gpo.gov/bis/index.html or where so instructed by Keynote. You agree not to export or re-export to entities on the most current U.S. EAR exclusion lists or to any country subject to U.S. embargo or terrorist controls as specified in the U.S. EAR laws. You will not use or provide Keynote products, services, software, technology, or technical data for nuclear, missile, or chemical biological weaponry end uses.
6.9 The Software and Documentation are a “commercial item” as defined in 48 C.F.R. 2.101 (Oct. 1985). Software and Documentation acquired with U.S. Government funds or intended for use within or for any U.S. federal agency is provided with “Restricted Rights” as defined in DFARS 252.227-7013©(1)(ii) or FAR 52.227-19. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software and Documentation with only those rights set forth in this Agreement. Manufacturer is Keynote LLC, 777 Mariners Island Blvd, San Mateo, CA 94404.
777 Mariners Island Blvd.
San Mateo, CA 94404