Webperform Service Agreement

Important—read carefully: This Webperform service agreement is a legal agreement between you and Gomez inc. Please read this agreement carefully and indicate your acceptance by clicking the "I accept" button below. Your use of the services shall constitute acceptance of the following terms. If you do not agree to these terms, you must discontinue use of the services immediately.

For purposes of this Webperform Service Agreement, "Gomez" and "Company" includes Gomez Inc., and any of its divisions, subsidiaries, successors, and all other related entities, its and their directors, officers, employees, trustees, agents, successors and assigns

1. Scope of Services. This Site is only for your internal business use in accessing services, reports, products and/or analyses from Gomez (collectively "Services"). You shall not (a) make the Services or any portion thereof available for use, access, display, searching or retrieval by, or on behalf of, any third party; or (b) make the Services available in any "public" or "free" area, or area accessible on the World Wide Web. Services are for solely for your internal business use and may not be copied or distributed to any person for any purpose. You agree not to interrupt or attempt to interrupt the operation of this Site in any way. Gomez shall have no obligation to correct errors in, provide updates for or otherwise support the Services.

2. Termination of the Services. You agree that Gomez Inc. may terminate or suspend your access to the Webperform.com site for any reason. Any suspected fraudulent, abusive, or illegal activities are possible grounds for termination. If Gomez terminates without reason, then you will be entitled to a refund of fees that you actually paid in respect of periods following such termination. Subject only to the foregoing, neither Gomez nor any of its employees shall be liable to you or any third party for the termination of any Services or any claims related to the termination of the Services.

3. Gomez's Rights to User's Material. If you send any communications or materials as a result of or in connection with your use of the Services by electronic mail or otherwise, including any comments, data, questions, suggestions, or the like, all such communications are, and will be treated as, non-confidential and non-proprietary. Thus, you give up any claim that any use of such material violates any of your rights including moral rights, privacy rights, proprietary or other property rights, publicity rights, rights to credit for material or ideas, or any other right, including the right to approve the way Gomez uses such material. Any material submitted as a result of or in connection with your use of the Services may be adapted, broadcast, changed, copied, disclosed, licensed, performed, posted, published, sold, transmitted, or used by Gomez anywhere in the world, in any medium, forever. Furthermore, Gomez is free to use, without any compensation to you, any concepts, ideas, know-how, or techniques contained in any communication you send as a result of the Services for any purpose whatsoever, including but not limited to developing, manufacturing, and marketing products using such information. However, you agree and understand that Gomez is not obligated to use any such ideas or materials, and you have no rights to compel such use.

4. Intellectual Property. You acknowledge and agree that all rights, title and interest in and to the Services (including without limitation, software, algorithms, processes and other underlying technology) and the contents thereof and the works generated in conjunction with your use of the Services, and all copyrights, trademarks, inventions and related intellectual property are and shall remain the property exclusively of Gomez or its licensors, as applicable. You shall not remove or alter any copyright notices appearing in any materials transmitted to you or generated in connection with your use of the Services.

5. Representations and Warranties. You specifically represent and warrant not to nor allow any third-party to; (i) attempt to reverse engineer, decompile, disassemble, alter source code to collect and/or transmit personally identifiable information ("PII") or attempt to derive the source code of the Services or any portion thereof; (ii) modify, port, translate, localize or create derivative works of the Service; (iii) use the Services in a way that (a) infringes on the intellectual property rights of any third party or any rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control, unfair competition, anti-discrimination and/or false advertising); (c) is defamatory, trade libelous, unlawfully threatening, or unlawfully harassing data; (d) is obscene, pornographic, indecent or in violation of applicable law; or (e) propagates any virus, worm, Trojan horse or other programming routine intended to damage any system or data; (iv) uses the Services in a time-sharing, outsourcing, or service bureau environment or in any way which allows a third-party access or use the Services ; and/or (v) file copyright or patent applications that include the Services or any portion thereof. "PII" means personally identifiable information, including without limitation: (1) any information from which an individual may be identified, including without limitation, an individual's name, address, telephone number, social security number, account relationships, account numbers, account balances, and account histories; (2) information concerning an individual that would be considered "nonpublic personal information" within the meaning of Title V of the Gramm-Leach Bliley Act of 1999 (Public Law 106-102, 113 Stat. 1338) and its implementing regulations, as the same may be amended from time to time; and (3) information concerning an individual that is protected from disclosure by other applicable federal or state laws and regulations, including, without limitation, the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations and CA SB 1386 regarding privacy (as the same may be amended from time to time).

6. Indemnification. You agree to indemnify, defend, and hold Gomez (as defined above) and all of its agents, directors, employees, information providers, licensors and licensees (collectively, "Indemnified Parties"), harmless from and against any and all liability and costs (including, without limitation, attorneys' fees and costs), incurred by the Indemnified Parties in connection with any claim arising out of any breach by you of these terms and conditions or the foregoing representations, warranties, and covenants. You will cooperate as fully as reasonably required in Gomez's defense of any claim. Gomez reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without the written consent of Gomez.

7. Disclaimer of Warranties and Damages. YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED "AS IS." GOMEZ MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER (1) FOR THE ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THE SERVICES; (2) THAT THE SERVICES OR THE SITE COMPONENTS ARE FREE OF VIRUSES OR OTHER DEVICES OR TECHNOLOGIES THAT MAY INFECT, HARM, OR CAUSE DAMAGE TO YOUR COMPUTER EQUIPMENT OR ANY OTHER PROPERTY WHEN YOU ACCESS, BROWSE, DOWNLOAD FROM, OR OTHERWISE USE THE SITE; (3) THAT YOU SHOULD RELY ON THE RESULTS OBTAINED FROM USE OF THE SERVICES.

8. Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO GOMEZ'S NEGLIGENCE, SHALL GOMEZ BE LIABLE FOR ANY CONSEQUENTIAL, DIRECT, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES RELATED TO (A) THE USE OF, (B) THE INABILITY TO USE, OR (C) ERRORS OR OMISSIONS IN THE CONTENTS AND FUNCTIONS OF THE SERVICES, EVEN IF GOMEZ OR AN AUTHORIZED REPRESENTATIVE THEREOF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL GOMEZ'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) EXCEED $100.00.

9. General Provisions. This Webperform Service Agreement constitutes the entire agreement between the parties concerning your use of the Services. Any cause of action you may have with respect to your use of this Site must be commenced within one (1) year after the claim or cause of action arises. If for any reason a court of competent jurisdiction finds any provision of this Webperform Service Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of this agreement, and the remainder of this Webperform Service Agreement shall continue in full force and effect. This shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, United States of America, without reference to its conflicts of law rules. The application the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.

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