Terms of Service


Date Posted: December 20, 2012

These Terms of Service (the "Terms") constitute the entire agreement, and the only agreement (except as otherwise set forth herein), between Compuware Corporation. ("Compuware") and participants in the Gomez PEER Direct Payment Program (the "Program").

By completing an application and having that application approved by Compuware, as further described in these Terms, you may become a participant in the Program and have access to the Gomez PEER software application (the "Software") (as described further herein, access and use of the Software is governed by a separate End User License Agreement, "EULA"). Pursuant to these Terms, Compuware may, subject to certain conditions, compensate you for your participation in the Program based on the amount of time that your personal computer is connected to the Internet and running the Software and for the amount of time that your personal computer processes work through the Software. Failure to adhere to these Terms may, at Compuware's option, result in your disqualification from the Program.

Compuware may amend these Terms at any time and from time to time by posting the amended Terms on the Gomez PEER Zone Web site (the "Site"). The amended Terms will take effect and become part of these Terms thirty (30) days after they are initially published on the Site. By continuing to participate in the Program following such amendments, you agree to be bound by the Terms as amended. If you have any questions regarding these Terms, the Site or the Software, please contact us.


TERMS

Definitions:

Gomez PEER. An individual who has applied to become a participant in the Program, whose application has been approved by Compuware, and who has downloaded, installed, and run the Software on his/her System in accordance with the EULA.

System. A System is any laptop or desktop computer on which the Gomez PEER software is installed. The PEER software must be installed and run on a physical desktop or laptop computer. Virtual machines are not recognized as legitimate systems. Running the PEER software on a virtual machine will result in account deactivation. Running the PEER software through a cloud provider and/or datacenter will also result in account deactivation.

System Characteristics. System Characteristics will include, but are not limited to, geographic location, connection type, and Internet service provider. Note that access to the Software may be limited from time to time depending on the service provided by your Internet service provider or other third parties.

System Activity. System Activity is defined as a Gomez PEER's current and historical Online Time and Processing Time.

Online Time. Online Time is the number of minutes that a Gomez PEER's System is running the Software while connected to the Internet. After installing the Software, it will periodically communicate with Compuware's servers through the Internet, signal that it is available for work, and request a work unit. Gomez PEERs will be credited for Online Time approximately every 15 minutes that the Software is running while an Internet connection is present and the Software is able to communicate with Compuware's servers.

Processing Time. Processing Time is the number of minutes a Gomez PEER's System is processing work for Compuware while an Internet connection is present and the Software is able to communicate with Compuware's servers. Based on a Gomez PEER's System Characteristics, the System will receive instructions through the Software to autonomously test the responsiveness and performance of the Web and certain Web sites.

Earnings Period. Earnings Period is defined as one month beginning with the first calendar day of the month to the last calendar day of the month. For example, July 1 to July 31 is one Earnings Period.

Earnings Closing Date. The last calendar day of the month. For example, July 31.


How the Program works:

Approval Process. You must fully complete the online application form and download, install, and run the Software in accordance with the EULA to be considered for the Program. Compuware will review your application and, at its sole discretion, determine whether to approve or deny your application to participate in the Program. Compuware may base its decision to approve or not approve your application on your System Characteristics and/or, System Activity, and Compuware will rely entirely in that regard on the information submitted by you through the online application form and other verifiable information using various system detection methods. Compuware reserves the right to change the status of any Compuware PEER to "Active", "Inactive", or "Pending" at any time for any reason or no reason whatsoever without notice, and reserves the right to reject any application to become a participant in the Program for any reason or no reason whatsoever without notice.

Account Status. Account Status determines whether Gomez PEERs are eligible for payments for Online Time and Processing Time. After Compuware reviews each application and recognizes that the potential Gomez PEER is running the Software, Compuware will designate each Gomez PEER an "Account Status," defined as follows:

Active. Gomez PEERs who have been selected by Compuware to receive payments for Processing Time. Selection is based, in Compuware's sole discretion, on the current Compuware business need for Gomez PEERs with certain System Characteristics and System Activity. "Active" Gomez PEERs will receive monthly payments based on the conditions set forth in the "Payment Information" section and elsewhere in these Terms.

Pending. Gomez PEERs that have not been selected by Compuware to be an "Active" Gomez PEER. After reviewing your application, PEERs with System Characteristics and System Activity that do not meet Compuware's current business needs are designated as "Pending". These Gomez PEERs may or may not meet or be meeting the minimum daily and monthly thresholds. Selection is based, in Compuware's sole discretion, on the current Compuware business need for Gomez PEERs with certain System Characteristics and System Activity. "Pending" Gomez PEERs are not compensated for Processing Time; however, all Gomez PEERs are eligible for referral payments. If a Gomez PEER's status is changed to "Active", the Gomez PEER is eligible to receive earnings for Processing Time that accrued in the Earnings Period in which the respective Gomez PEER became "Active." Any potential earnings accrued while in "Pending" status will not be carried over to the next Earnings Period.

Inactive. Compuware has not received or reviewed your application, or your account has been found to be in violation of our Terms of Service. "Inactive" Gomez PEERs are not compensated for Processing Time; however, all Gomez PEERs are eligible for referral payments. If the Gomez PEER's status is changed to "Active", the Gomez PEER is eligible to receive any pending earnings for Processing Time that accrued in the Earnings Period in which the respective Gomez PEER became "Active." Any potential earnings accrued while in "Inactive" status will not be carried over to the next Earnings Period.

NOTE: Compuware will select "Active" Gomez PEERs at its sole discretion, and neither running the Software nor being approved as a Gomez PEER, in the absence of being designated as an "Active" account, will entitle any Gomez PEER or any other individual or entity to any payments from Compuware. The Account Status is displayed on the PEER software application window.


Payment Information:

Processing Time Payments. To be eligible for Processing Time payments for any given day, you must be an "Active" Gomez PEER. Processing Time is earned according to the current rates posted on the Site.

Referral Bonus. Referral Bonuses can be earned by Gomez PEERs for referring potential Gomez PEERs on the Site. To be eligible for Referral Bonuses, Gomez PEERs may have an "Active," "Pending," or "Inactive" Account Status. By entering referral information, including the corresponding e-mail address, the Gomez PEER grants Compuware permission to send e-mail messages to the referred recipient's e-mail address. The referred recipient has the option to accept or decline receipt of additional e-mail messages from Compuware. There is no maximum number of referred Gomez PEERs allowed per username account. Gomez PEERs can earn money from referrals according to the current rates posted on the Site. Referred potential Gomez PEERs must meet the following conditions before referring Gomez PEERs earn the referral bonus:

The referred potential Gomez PEER must:
1. Complete the application form and indicate the referrer's valid username.
2. Have that application approved by Compuware (which approval or denial of approval shall be in Compuware's sole discretion)
3. Download, install, and run the Software.
4. Be selected as an "Active" Gomez PEER.

Fulfillment. Gomez PEERs will accrue earnings on a monthly basis starting on the first day of each month and ending on the last day of each month. For example, July earnings will accrue between July 1 and July 31 (Earnings Period). And in this example, July 31 is the Earnings Closing Date.

Compuware will distribute payments either through a third-party electronic payment service (fulfillment partner) or by other means, at its own discretion. Currently, Compuware distributes payments through its fulfillment partner PayPal. Therefore, Gomez PEERs are required to register for a free PayPal account at www.paypal.com to be eligible to receive any payments hereunder. Current PayPal users do not have to register for another account. If Compuware's fulfillment partners change, Compuware will notify all Gomez PEERs and distribute payments either though another third-party electronic payment service (for which registration by the Gomez PEERs may be required as a condition of any payments) or by other means, at its sole discretion.

Due to account reconciliation, Gomez PEERs eligible for payment for Processing Time, Online Time or Referral Bonuses ("Active" Gomez PEERs only) will have funds deposited into their PayPal accounts before the next Earnings Closing Date as long as they meet the Minimum Monthly Payment threshold that is defined below. Please allow a minimum of 10-15 business days from the Earnings Close Date for payment to appear in your account. Payments are subject to all limitations set forth in these Terms.

Compuware will keep accounting records of such payments only up to the point that they are submitted to the fulfillment partner. Compuware will not be held responsible for any mishandling or account transactions that take place after the payment list is presented to the fulfillment partner. However, Compuware will reconcile any payment discrepancies that occur due to Compuware's error. Payment issues will only be looked into within 6 months of the Payment Date.

Note: Compuware reserves the right to withhold or cancel any and all payments hereunder if there is evidence or suspicion of fraud, material misstatements or omissions in any application, or if there is insufficient or incorrect information which makes it commercially impracticable to complete the payment transaction, or for any other reason which Compuware at its sole discretion deems significant enough to warrant such a cancellation of payment.

Minimum Monthly Payment. Gomez PEERs must accrue a minimum monthly amount of earnings before payments are distributed electronically through the Gomez PEER's PayPal account. The current minimum monthly payment accrual amount is listed on the current rates on the Site. The Minimum Monthly Payment amount can be a combination of Processing Time and/or Referral Bonuses payment amounts. If the Minimum Monthly Payment amount is not met during the current Earnings Period, the account balance will be carried forward and applied to the next Earnings Period.

Maximum Payment Amount. All payments are subject to a monthly maximum according to the current rates posted on the Site. Earnings accrued in excess of the Maximum Payment Amount will not be paid or carried forward to the next Earnings Period. This payment limit is determined by Compuware at its sole discretion and is subject to change at any time without notice.

All payment schedules are listed on the current rates on the Site, and are subject to change, at Compuware's sole discretion, at any time without notice.


Gomez PEER responsibilities:

Age. You must be at least 18 years of age in order to participate in the Program.

Application. You must complete Compuware's online application form as well as download, install, and run the Software in accordance with the EULA to be considered for the Program. When you submit an application, you agree that you will keep any passwords Compuware provides you confidential and notify Compuware within 24 hours of any unauthorized disclosure or use of your any password; unauthorized use of your account, or other breach of security.

Account Information. When submitting an application to become a Gomez PEER, you agree to provide accurate and complete information that includes, but is not limited to, personal, payment, and System information (collectively, "Account Information"). This information is collected for use in payment distribution and Account status assignment. Compuware reserves the right to cancel payments and/or deactivate accounts that are discovered to be false, inaccurate or fraudulent in any way, or which are based on or include false, inaccurate or fraudulent Account Information. By furnishing Account information to Compuware, you expressly authorize Compuware (and its agents) to use such Account Information in accordance with Compuware's Privacy Policy . You expressly represent and warrant to Compuware (and its agents) that you have the right to provide all such Account Information to Compuware.

Unique PEER Account. Gomez PEERs are limited to one unique PEER account. A unique PEER account is defined as the application information from one individual that has one username and one e-mail address. Gomez PEERs may have multiple Systems running the Software, but all such Systems must be identified with and registered under the same PEER account (username and e-mail address). If duplication of accounts is detected, Compuware reserves the right to cancel payment and/or deactivate all of the accounts involved in the duplication. The PEER software must be installed and run on a physical desktop or laptop computer. Virtual machines are not recognized as legitimate systems. Running the PEER software on a virtual machine will result in account deactivation. Running the PEER software through a cloud provider and/or datacenter will also result in account deactivation.

E-mail Address. By accepting these Terms, you agree to allow Compuware to use your account e-mail address. Your e-mail address is used to process payments and as a primary source of contact information. Compuware reserves the right to cancel payments and/or deactivate accounts with an invalid e-mail address listed on the account.

Gomez PEER. Installation and usage of the Software is governed by the EULA. By using the Software, you agree to allow Compuware to send information to your System using your active Internet connection and to allow the Software to use your available System resources to process work requests. You agree to not hold Compuware liable for any damages that may occur as a result of using the Software, including without limitation damage to your System or degradation in the performance of your System.

Fraudulent reporting of Online Time and Processing Time. Gomez PEERs that modify the Software or their System to inaccurately or fraudulently report Online Time and Processing Time (System Activity) will be immediately deactivated without notice and will forfeit all accrued, current and future earnings. Gomez PEERs will also be liable for any damages (financial or technical) that Compuware experiences due to the foregoing. Compuware also has the right to recoup payments that have been made to Gomez PEERs that inaccurately or fraudulently report System Activity.


Gomez PEER Representations, Warranties and Indemnity:

In consideration of your participation in the Program, use of the Site and/or use of the Software, you agree to: (a) provide true, accurate, current and complete information about yourself; and (b) to maintain and update this information to keep it true, accurate, current and complete. If any information provided by you, at any time, is untrue, inaccurate, not current or incomplete, Compuware has the right to terminate your participation in the Program and to not make any accrued, current or future payments to you pursuant to or in connection with the Program.

You acknowledge and agree that you must: (a) provide for your own access to the World Wide Web and pay any service fees and telephone charges associated with such access, and (b) provide all equipment necessary for you to make such connection to the World Wide Web, including a computer and modem.

By participating in the Program, using the Site and/or using the Software, you agree that participation in the Program and use of the Site and Software are entirely at your own risk. THE PROGRAM, SITE AND SOFTWARE ARE ALL PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, SERVICES, UNINTERRUPTED ACCESS, OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THE PROGRAM, SITE OR THE SOFTWARE. SPECIFICALLY, COMPUWARE DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO: (1) ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, OR CONTENT OF INFORMATION, AND (2) ANY WARRANTIES OF TITLE, WARRANTY OF NON-INFRINGEMENT, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION.

NEITHER COMPUWARE NOR ANY OF ITS EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS, AFFILIATES, OR CONTENT OR SERVICE PROVIDERS SHALL BE LIABLE TO YOU OR ANY OTHER THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE PROGRAM OR USE OF THE SITE OR SOFTWARE OR INABILITY TO GAIN ACCESS TO OR USE THE PROGRAM, SITE OR SOFTWARE OR OUT OF ANY BREACH OF ANY WARRANTY. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, THE RESPECTIVE LIABILITY OF COMPUWARE, ITS EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS, AFFILIATES, AND CONTENT OR SERVICE PROVIDERS RESPECTIVE LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY SUCH STATE LAW.

RESOURCE AUTHORITY. Compuware does not encourage the use of the Software on work or school PC's unless it is done in accordance with corporate or school policies, respectively, and by an individual who has been granted the authority, by the business or school, to make this determination. Compuware is not responsible for violations of company or school policies with respect to installing/running applications on corporate or educational networks. By agreeing to these Terms, you are stating that you have the necessary authority over the resources you are committing to service. If it is determined by your employer, your educational institution or Compuware, that you did not have such authority, the sole and exclusive remedy is to discontinue using the Site and Software.

Compuware is the owner and/or authorized user of any trademark, registered trademark and/or service mark associated with the Program, and is the copyright owner or licensee of the content and/or information associated with the Program. Compuware does not hereby grant any license or other authorization to any user of its trademarks, registered trademarks, service marks, or other copyrightable material or other intellectual property.

You agree to defend, indemnify and hold harmless Compuware, its officers, directors, employees, agents, successor and assigns from and against any suits losses, claims, demands, liabilities, costs and expenses, including reasonable attorneys' fees, that they may sustain or incur as a result of any claim against them based upon negligence, breach of warranty, strict liability in tort, contract or any other theory of law brought by you or by other third parties arising out of, directly or indirectly, your participation in the Program, your use of the Software or your use of the Site or by reason of your failure to perform your obligations described in these Terms.


Failure to Comply With Terms and Conditions and Termination

You acknowledge and agree that Compuware may terminate your participation in the Program without prior notice if you engage in any conduct or activities that Compuware at its sole discretion believes violate any of these Terms, violate the rights of Compuware, or is otherwise inappropriate for continued participation in the Program. In such event, you further acknowledge and agree that Compuware may terminate any and all accrued, current and future payment obligations to you in connection with the Program.


GENERAL PROVISIONS

Relationship of Parties:

Gomez PEERs are independent contractors and not, as such, agents or employees of, and have no authority to bind, Compuware by contract or otherwise. Gomez PEERs will participate in the Program under the general direction of Compuware and subject to these Terms. You will report as income any and all compensation received by you under these Terms. You will indemnify Compuware and hold it harmless from and against all claims, damages, losses and expenses, including reasonable fees and expenses of attorneys and other professionals, relating to any obligation imposed by law on Compuware to pay any withholding taxes, social security, unemployment or disability insurance, or similar items in connection with any compensation received by you pursuant to this Agreement. Unless otherwise eligible, you will not be entitled to participate in any plans, arrangements, or distributions by Compuware pertaining to any bonus, stock option, profit sharing, insurance or similar benefits for Compuware's employees.

Notice:

Unless stated otherwise, all notices will be sent by e-mail:

(i) by you to peers@gomez.com or

(ii) by Compuware either to the e-mail address you provide to Compuware during the application process or other address that you specify in writing.

E-mail notices will be read within 72 hours of being sent, unless the sender is notified that the e-mail address is invalid or returned undeliverable. Alternatively, Compuware may provide notice by certified mail, postage prepaid and return receipt requested, to the address provided to Compuware on the Compuware PEER's registration form.

Force Majeure:

Compuware will not be responsible for delays or failures in performing its obligations under these Terms due to any cause beyond its reasonable control.

Governing Law:

These Terms shall be governed by the laws of the State of Massachusetts without regard to conflict of law provisions and as if made and to be performed entirely within the State of Massachusetts. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and is strictly excluded. The parties hereby consent to the jurisdiction and venue of the state and federal courts of Massachusetts.

Entire Terms:

These Terms, and the other terms and conditions incorporated by reference or otherwise referred to herein, constitute the entire agreement between the parties with respect to the subject matter that they describe, and supersede all prior proposals, negotiations, conversations, discussions and agreements between the parties concerning the information they cover.

Severability:

If any section of these Terms is found to be invalid or unenforceable in any jurisdiction, then the meaning of that section will be interpreted, to the extent feasible, in a way that renders it enforceable. If no feasible interpretation is possible, the section will be severed from the rest of these Terms and the rest of the Terms will remain in full force and effect.

Section Headings:

The section headings are for convenience only; they form no part of the terms and conditions of the Terms and will not affect the interpretation of these Terms.

Binding Effect:

These Terms will be binding upon and enforceable by the parties they describe and their respective heirs, personal representatives, successors and assigns.

Non-Waiver:

The failure of Compuware to enforce or require enforcement of any provisions of these Terms will not constitute, or be construed to be, a waiver of the Terms' provisions, nor will it affect Compuware's right to enforce all provisions of these Terms thereafter.