Gómez
PEER Software License Agreement
This End User License Agreement (EULA) is a contract between you (either an individual or a single entity) and Gómez, Inc. ("Gómez"). This EULA covers your use of the Gómez PEER
and related software components, which may include associated media,
printed materials, and "online" or electronic documentation.
All such software, materials, releases, corrections, updates and
enhancements provided hereunder are referred to herein as the "Software."
A software license and a license key, serial number, and/or individualized
user name and password issued to a designated user only by Gómez
or its authorized agents, is required for each user of the Software.
PLEASE READ THIS LICENSE CAREFULLY. IF YOU DO NOT AGREE TO ANY
OF THE TERMS OF THIS LICENSE, THEN DO NOT INSTALL, DISTRIBUTE OR
USE THE SOFTWARE. BY SELECTING THE "ACCEPT" BUTTON, AND/OR
BY INSTALLING, COPYING, DOWNLOADING, ACCESSING, OR OTHERWISE USING
THE SOFTWARE PRODUCT AND/OR SOFTWARE PRODUCT LICENSE, YOU ARE ACKNOWLEDGING
AND AGREEING TO BE BOUND BY THE TERMS OF THIS EULA.
1. License Grant
Subject to the terms of this EULA and once you have successfully
obtained an individualized user name and password issued to you
only by Gómez or its authorized agents, Gómez grants you a non-exclusive,
non-transferable license to use the object code version of the Software
distributed with this EULA during the term of this EULA. Under this
Agreement, you are licensed to freely copy and use the Software
on any computer system(s). You may also operate multiple valid copies
of the Software at any one time.
2. License Restrictions
You agree that you will not disassemble, decompile, or reverse
engineer, create derivative works based on, or modify the Software
to the extent that this limitation is expressly prohibited by applicable
law. Any attempt to transfer any of the rights, duties or obligations
hereunder except as expressly provided for in this EULA is void.
You may not rent, lease, sublicense, loan or distribute the Software.
The Software contains confidential and trade secret information
that is owned by Gómez, and you shall at all times take reasonable
steps to protect the confidentiality of such information. Any software
accompanying this license which is manufactured by a third party
and which is accompanied by a license agreement from that third
party is licensed under that agreement and is not licensed hereunder,
and you will look solely to that third party and not to Gómez in
enforcing any rights you may be granted under that agreement.
3. Proprietary Rights
a. You are only licensing rights to use the Software and are not
buying the Software. All rights, title, and interest in and to the
Software and accompanying documentation, in whole and in part and
all copies thereof, is and will remain the sole and exclusive property
of Gómez. You agree that aspects of the licensed materials, including
the specific design and structure of individual portions of the
Software and the related documentation, constitute trade secrets
and/or copyrighted material of Gómez. You shall not disclose, provide,
or otherwise make available such trade secrets or copyrighted material
in any form to any third party without the prior written consent
of Gómez. You agree to implement reasonable security measures to
protect such trade secrets and copyrighted material.
b. You will not delete or in any manner alter the copyright, trademark,
or other proprietary rights notices of Gómez and its licensors,
if any, appearing on or in the Software as delivered to you. You
will reproduce such notices on all copies you make of the Software.
4. Limited Warranty and Limitation of Liability
a. Gómez does NOT warrant that the functions contained in the
Software will meet your requirements or that the operation of the
Software will be uninterrupted or error free. Computer software
is inherently subject to bugs and potential incompatibility with
other computer software and hardware. You should not use the Software
for any applications in which failure could cause any significant
damage or injury to person or tangible or intangible property. You
should also be sure that all data files and programs are properly
backed up to prevent data loss that could result from a software
malfunction.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE
AND DOCUMENTATION ARE PROVIDED "AS IS" WITHOUT WARRANTY
OF ANY KIND AND GÓMEZ EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES
AND CONDITIONS, INCLUDING THE IMPLIED WARRANTIES AND CONDITIONS
OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR
PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY GÓMEZ,
ITS EMPLOYEES, DISTRIBUTORS, DEALERS OR AGENTS SHALL INCREASE THE
SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES. THE
ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS
WITH YOU AND YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING
REPAIR OR CORRECTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO
THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. IN THAT EVENT, ANY IMPLIED
WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE
DATE OF DELIVERY OF THE SOFTWARE. THIS WARRANTY GIVES YOU SPECIFIC
LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO
STATE.
b. IN NO EVENT SHALL GÓMEZ OR ITS EMPLOYEES, DISTRIBUTORS, DEALERS
OR AGENTS BE LIABLE TO YOU OR ANY OTHER PARTY FOR INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING FROM THIS
EULA, THE USE OF THE SOFTWARE OR FROM ANY MAINTENANCE AND SUPPORT
SERVICES, WHETHER RESULTING FROM TORT (INCLUDING NEGLIGENCE), BREACH
OF CONTRACT, PRODUCT LIABILITY, OR OTHER FORM OF ACTION, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE
FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. You expressly assume
all responsibility for any damages, lost data, lost profits and
other consequential damages that may result in any way out of this
EULA, including without limitation, use of the Software.
5. Government Rights
The Software is "commercial computer software", and is
provided with restricted rights. Use, duplication, or disclosure
by the United States government is subject to restrictions as set
forth in this EULA and as provided in DFARS 227.7202-1(a) and 227.7202-3(a)
(1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a)(1995),
FAR 52.227-19, or FAR 52.227-14(ALT III), as applicable.
6. Compliance With Law
You acknowledge and agree that the Software, documentation, and
other technical data provided hereunder are subject to restrictions
and controls imposed by the United States Export Administration
Act of 1979, as amended (the "Act"), and the regulations
promulgated thereunder. You agree and certify that neither the Software,
documentation nor any technical data provided hereunder is being
or will be acquired, shipped, transferred or re-exported, directly
or indirectly, into any country prohibited by the Act and the regulations
promulgated thereunder or any other export or import law of any
country or will be used for any purpose prohibited by the same.
You further agree to comply with all laws and regulations of all
jurisdictions in your use of the Software.
7. Termination
This EULA will continue in full force and effect, except as follows:
a. Termination. Either party may terminate this Agreement immediately
upon notice to the other party.
b. Return of Materials. If this EULA is terminated, the rights
and licenses granted to you hereunder with respect to the Software
shall automatically terminate. Within five (5) days of termination,
you will destroy (including purging from any system or storage media)
the Software (and all other copies of the Software made by you directly
or indirectly). If requested by Gómez, you will certify that all
copies of the Software have been destroyed.
c. Survival of Obligations. The provisions of Sections 3 (Proprietary
Rights), 4 (Limited Warranty and Limitation of Liability), 5 (Government
Rights), 7 (Termination), and 8 (General) will survive termination
of this EULA for any reason.
d. Nonexclusive Remedy. The exercise by Gómez of any remedies
under this EULA will be without prejudice to its other remedies
under this EULA or otherwise.
8. General
a. Choice of Law. This EULA will be governed by and construed in
accordance with the laws of the State of North Carolina, and specifically
excluding the provisions of the United Nations Convention on the
International Sale of Goods.
b. Assignment. This EULA will bind and inure to the benefit of
each party's successors and assigns, provided that you may not assign
this EULA, in whole or in part, without Gómez's prior written consent.
c. Severability. If any provision of this EULA is found illegal
or unenforceable, it will be enforced to the maximum extent permissible,
and if not possible, severed, and the legality and enforceability
of the other provisions of this EULA will not be affected.
d. Waiver; Force Majeure. No failure of either party to exercise
or enforce any of its rights under this EULA will act as a waiver
of such rights. Performance of this EULA may be suspended due to
an event of force majeure.
e. Entire Agreement. At the time this EULA becomes effective, it
shall become the entire agreement and understanding of the parties
regarding the subject matter hereof and may not be modified except
by a written instrument which expressly amends this EULA signed
by an authorized representative of each party. No purchase order,
invoice or similar document will by its terms amend or supplement
the terms and conditions of this EULA, even if accepted or signed
by the receiving party.
f. Use of Second Person Subject. The use of the words "you"
and "your" in this EULA refers to the registered user
of the Software, as reflected in Gómez's records.
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