BrowserCam Service Agreement

BrowserCam Service Agreement

IMPORTANT – READ CAREFULLY: THIS BROWSERCAM SERVICE AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND GOMEZ, INC. PLEASE READ THIS AGREEMENT CAREFULLY AND INDICATE YOUR ACCEPTANCE BY CHECKING “I ACCEPT”. 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 Agreement, “Gomez” and “Company” includes Gomez, Inc., and any of its divisions, affiliates (which means all persons and entities directly or indirectly controlling, controlled by or under common control with Gomez, Inc.), subsidiaries, successors, and all other related entities, its and their directors, officers, employees, trustees, agents, successors and assigns, and all persons acting by, through, under or in concert with Gomez, Inc.

1. Scope of Services. The Services are only for your internal business use in viewing screen captures of your webpage loaded in the different browsers and operating systems you select (“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; (b) make the Services available in any "public" or "free" area, or area accessible on the World Wide Web; or (c) violate any laws, rule and regulations applicable to the Services (collectively defined as “Misuse”).

2. Termination of the Services. You agree that Gomez may terminate or suspend your access to the BrowserCam.com site for any reason. Any suspected fraudulent, abusive, or illegal activities are possible grounds for termination. 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. Intellectual Property. You acknowledge and agree that all title to and ownership and proprietary rights of all systems, software, documentation, tools, utilities, methodologies, specifications, techniques and other materials, know how and hardware and the contents thereof and all related intellectual property are and shall remain the property exclusively of Gomez or its licensors, as applicable.

4. 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 SERVER THAT MAKES THIS SITE AVAILABLE IS FREE OF VIRUSES OR OTHER COMPONENTS 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.

5. 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 THE CONSIDERATION PAID TO GOMEZ BY YOU FOR THE RELEVANT PROGRAM(S) OR SERVICES WITHIN THE IMMEDIATELY PRECEDING SIX (6) MONTH PERIOD FROM WHICH SUCH CLAIM ARISES.

6. Indemnification. You (the “Indemnifying Party”) agree to indemnify, defend, and hold Gomez and all of its agents, directors, employees, information providers, licensors and licensees, officers, and parent (collectively, "Indemnified Parties"), harmless from and against any and all damages, liabilities, costs and expenses (including, without limitation, attorneys' fees and costs), incurred by the Indemnified Parties in any third party action arising out of or in connection with the Indemnifying Party’s (i) breach of any representations, warranties; (ii) intellectual property infringement; or (iii) Misuse of the Services. You shall not in any event settle any matter without the prior written consent of Gomez.

7. General Provisions. This 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 the Service must be commenced within one (1) year after the claim or cause of action arises. Gomez and You agree that any action at law or in equity arising out of or relating to this Agreement shall be filed only in the sate or federal courts located in the County of Middlesex, Massachusetts. The parties hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.