NOTICE TO CUSTOMER: THIS IS A LEGAL AND NONEXCLUSIVE AGREEMENT. KEYNOTE SYSTEMS, INC. ("KEYNOTE") IS
WILLING TO PROVIDE THE SERVICES SELECTED BY CUSTOMER AS INDICATED IN THIS SYSTEMS SUBSCRIPTION
AGREEMENT (THE "AGREEMENT") AND THE NETWORK PERFORMANCE MEASUREMENTS ("DATA"), ONLY TO PARTIES
THAT ACCEPT ALL THE TERMS OF THIS AGREEMENT. COLLECTIVELY, THE KEYNOTE SERVICES AND DATA SHALL BE
REFERRED TO AS THE ("KEYNOTE SERVICES") SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS
AGREEMENT AND ANY CHANGES TO THIS AGREEMENT THAT KEYNOTE MAY PUBLISH FROM TIME TO TIME. BY
USING THE KEYNOTE SERVICES, YOU ARE AGREEING TO THESE TERMS.
1. KEYNOTE SERVICES PROVIDED BY KEYNOTE: Keynote shall use its diligent and reasonable efforts to perform the Keynote Services selected by Customer as agreed to in this Agreement.
2. OWNERSHIP. Keynote retains all right, title and interest in and to the Keynote Services, as well as all intellectual property rights, including, without limitation, all copyright, trademark, moral and related rights.
3. SUBSCRIPTION TERM. The Subscription Term for the Keynote Services will commence the earlier of: (i) five (5) days from the order commencement date or (ii) activation of the applicable Keynote Services.
4. PAYMENT TERMS.
4.1 BILLING TERMS AND CONDITIONS:
a) Prepaid orders are due upon receipt of invoice. Delinquent payments will result in the loss of prepay discounts.
b) Prepaid orders will convert to a Month-to-Month billing cycle at the time of expiration of the initial Subscription Term.
c) Month to Month subscription payment terms are NET 30 days from Keynote's invoice date.
d) Failure to pay within terms will result in a charge of 1.5% per month (18% per year) finance charge and are subject to collection.
e) All costs and/or fees incurred to collect past due balances will be the responsibility of the Customer.
f) Keynote reserves the right to block and/or cancel service to Customers with overdue accounts.
4.2 List Price: Keynote's List Price shall mean the then- current (i.e., at the time of the event such as the issue of a relevant invoice to Customer) suggested list price for a Keynote Service. Keynote reserves the right to modify or change the List Price of any Keynote Service upon thirty (30) days written notice to Customer.
4.3 Conditions for Cancellations and Reductions Upon Expiration of the Subscription Term. Orders are not eligible for cancellation or reduction during a Subscription Term. Thereafter, written notification to cancel and/or reduce an order must be received by Keynote thirty (30) days prior to the effective date of such cancellation or reduction AND must be emailed to CAS@Keynote.com. Verbal cancellations and reductions or written notification to locations other than the email address listed above will result in continued charges for which the Customer will be held responsible.
4.4 "Reporting Period" means a period of time during which Customer requests Data to be collected, during any 24-hour cycle, and "Reporting Day" means each day in the applicable Reporting Period. Keynote can only control Keynote's servers and therefore does not guarantee delivery of all Data requested by Customer in any given Reporting Period. Provided, however, if Keynote is unable to provide at least seventy percent (70%) of the Data requested in any Reporting Day, Keynote will credit Customer the fee attributable to that affected measurement for that Reporting Day. The daily fee is equal to 3.3% of the monthly fee.
4.5 Keynote shall archive Data for six (6) weeks from the date of measurement. Customer may download and store Data on Customer's computer equipment for its own future use.
5. OBLIGATIONS OF CUSTOMER
5.1 Except as expressly set forth herein, Customer may not copy, sublicense, rent, lease, barter, resell, or otherwise distribute the Keynote Services to any third party entity or individual. Customer has the right to make such copies of the Data as reasonably necessary for Customer's internal use of such data.
5.2 Subject to the terms and conditions of this Agreement, Customer may publish and disseminate for its internal purposes summaries of the Data and to select third parties to verify service levels, provided that Customer agrees to prominently and clearly attribute Keynote as the source of the Data or information on which such summaries are based.
5.3 Customer shall 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 Customer's use, summarization, or dissemination of any Data, including, without limitation, trade libel and slander.
5.4 Customer grants Keynote the perpetual right to include Customer's name in Keynote's marketing materials published through any medium including press releases and case studies issued by Keynote regarding Customer's use of the Keynote Services. The contents of any press release or case study will be reviewed and approved by both parties public relations departments prior to issuance.
5.5 Except for the intended purpose of the Keynote Services as provided on Keynote's website or other applicable reference material, Customer agrees not to use, copy, modify, create a derivative work, or access any tool provided by Keynote and is explicitly prohibited from running automated scripts against Keynote's systems, except for bulk data delivery services. Any violation of this provision may result in additional charges and/or cancellation of Customer's rights to receive information from Keynote, at Keynote's sole discretion.
6. SUPPORT PROVIDED BY KEYNOTE
Support provided by Keynote to Customer for the Keynote Services shall consist of reasonable telephone support from 7:00 a.m. to 7:00 p.m,
Monday through Friday, Central US Time, excluding applicable holidays and from the United Kingdom (Euro Support), 8:00 a.m. to 5:00 p.m.
GMT, Monday through Friday, excluding applicable holidays, in accordance with Keynote's then-current policies for such support.
7. TERM AND TERMINATION
7.1 This Agreement is effective when accepted above by the Customer ("Effective Date") and shall continue for as long as Customer uses Keynote Services according to the terms and conditions of this Agreement. Keynote shall have the right to terminate this Agreement upon (30) days written notice to Customer with or without cause.
7.2 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, 4, 6, 7, 8, 9 and 10 shall survive any termination of this Agreement.
8. WARRANTY; INDEMNIFICATION
8.1 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.
8.2 EXCEPT FOR THE FOREGOING WARRANTIES IN SECTION 8.1, 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, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. KEYNOTE NEITHER ASSUMES, NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT, ANY OTHER LIABILITY IN CONNECTION WITH THE KEYNOTE SERVICES, DATA OR ANY OTHER INFORMATION, INCLUDING, WITHOUT LIMITATION, LIABILITY ARISING OUT OF THE DELIVERY, INSTALLATION, SUPPORT OR USE OF THE KEYNOTE SERVICES, INFORMATION OR DATA. KEYNOTE DOES NOT WARRANT THE RESULTS OF ANY PROGRAM OR 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 DATA OR KEYNOTE SERVICES DELIVERED TO CUSTOMER OR THAT THE DATA OR KEYNOTE SERVICES ARE TRANSMITTED TO CUSTOMER WITHOUT INTERRUPTION OR DELAY.
9. 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, 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 KEYNOTE
AND/OR ITS SUPPLIERS 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 KEYNOTE'S MAXIMUM LIABILITY
UNDER THIS AGREEMENT AT ANY TIME
EXCEED THE AMOUNTS PAID TO KEYNOTE UNDER THIS AGREEMENT DURING THE PRECEDING
12 CALENDAR MONTHS.
10. GENERAL
10.1 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. 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 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.
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 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 Keynote Services or Data).
10.5 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.
10.6 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 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 attached exhibits 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.
10.7 The trademarks of Keynote Systems, Inc. in the United States and other countries include Keynote®, Perspective®, the Internet Performance Authority®, MyKeynote™ and DataPulse®, all related trademarks, trade names, logos, characters, design, and trade dress are trademarks or registered trademarks of Keynote Systems, Inc. in the United States and other countries and may not be used without written permission. All other trademarks are the property of their respective owners.
10.8 The Keynote Services are a "commercial item" as defined in 48 C.F.R. 2.101 (Oct. 1985). Keynote Services 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(c)(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 Keynote Services with only those rights set forth in this Agreement. Manufacturer is Keynote Systems, Inc. 777 Mariners Island Blvd, San Mateo, CA 94404.