Legal (December 2017 - March 2018)
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES, LOADSTER CLOUD AND/OR SOFTWARE.
This Agreement was last updated on December 1st, 2017. It is effective between You and LP as of the date of You accepting this Agreement.
"Authorized Use Limits" means the use limitations placed on Your use of Loadster Cloud. Examples of possible Authorized Use Limits include Team Members, Cloud Regions, Virtual Users, tests, Virtual User Hours, bandwidth limits and limits on the number of application, IP addresses and domains that may be tested. A certain set of Authorized Use Limits are assigned to each plan, but additional Authorized Use Limits may be purchased on an as needed basis from LP in the form of Loadster Cloud Fuel.
"Cloud Regions" means a region within Loadster Cloud, as defined by LP in the LP Materials, typically broken down by geology, network topology or third party network provider.
"Confidential Information" is as defined in Section 5.3 below.
"Loadster Cloud" means the hosted set of solutions that are developed, operated, and maintained by LP (and its third party service providers) for the purpose of load testing.
"Loadster Workbench Engine" means the engine that is provided to You as part of Loadster Workbench to simulate concurrent users for load testing. The Loadster Workbench Engine may be used alone or in combination with Loadster Cloud Engines and/or the Loadster Engine.
"Loadster Engine" means the Loadster Engine software product that you license from LP pursuant to this Agreement. The Loadster Engine is separate from Loadster Cloud and Loadster Workbench. It is not required for use of Loadster Cloud or Loadster Workbench, but may be used in combination with both or either. An additional fee may be required for use of the Loadster Engine.
"Loadster Cloud Fuel" means the virtual fuel purchased by You which can then be used within Loadster Cloud to obtain additional Authorized Use Limits to run virtual load testing beyond those included with Your current plan.
"Loadster Workbench" mean the Loadster Workbench software product (including the Loadster Workbench Engine) that you license from LP pursuant to this Agreement that facilitates the transmission of Your Data to Loadster Cloud and Your use of Loadster Cloud. Loadster Workbench is separate from Loadster Cloud, but is required to use Loadster Cloud or Loadster Engine.
"LP Materials" means any documentation, user guides or other materials provided by LP to You in connection with your use of Loadster Cloud and the Software.
"LP Technology" means LP's proprietary technology and intellectual property rights therein (including, but not limited to, LP Materials, Software, documents, processes, algorithms, user interfaces, patent, copyright and trade secret rights) used by LP in providing Loadster Cloud or Services to You.
"Order Form" means the ordering or registration document(s) specifying the Loadster Cloud, Software and/or Services to be provided hereunder that is entered into between You and LP, including any addenda and supplements thereto. Ordering documents may be online web interfaces/pages.
"Report Address" means the Loadster Cloud reports that may be delivered to You during the Subscription Term, as defined in Section 5.2 below.
"Service Administrator" means the person that You designate to purchase usage of Loadster Cloud and the Software, authorize Team Members under the Agreement, create accounts for additional Team Members and otherwise administer Your use of Loadster Cloud, the Software and the Services.
"Services" means any consulting, training or other professional services provided by LP to You pursuant to the terms of an Order Form.
"Software" means the particular LP proprietary software program(s) supplied by LP to You, including any Software updates and Documentation, in connection with your use of Loadster Cloud. Software may include the Loadster Workbench and/or Loadster Engine software products.
"Subscription Term" means the initial term ("Initial Term") set forth on Your Order Form and any additional renewal terms (each, a "Renewal Term") to Loadster Cloud and the Software purchased by You.
"Team Member(s)" means Your employees, consultants, contractors or agents authorized by Your Service Administrator to use Loadster Cloud and the Software.
"Technical Support" or "Support" means the end user support for Loadster Cloud and the Software provided by LP during the Subscription Term, as defined in Section 3.2 below.
"Virtual Users" means the simulated users allocated to access Your system(s) concurrently during load testing. Where Your Authorized Use Limits permit running concurrent tests, your Virtual Users use is determined on the total number of Virtual Users allocated across all concurrent tests. Examples of the calculation of Virtual Users are as follows:
- Customer has purchased a plan that allows for up to 10,000 Virtual Users and unlimited, concurrent testing.
- Customer conducts Test One for two hours with 250 simulated concurrent users. This would require use of 250 Virtual Users.
- Customer conducts Test Two at the same time as Test One for two hours with 7,000 simulated concurrent users. This would require use of 7,250 Virtual Users (7,000 virtual users for Test Two + 250 virtual users for Test One = 7,250 Virtual User Hours).
- Customer begins Test Three one hour after beginning Test One and Test Two. Test Three will run for two hours. Customer can use a maximum of 2,750 Virtual Users. If Customer desires to run Test Three concurrent with Test One and Test Two for a higher number of Virtual Users than included in Customer's plan, Customer may purchase additional use rights.
"Virtual User Hour(s)" means, for a typical script and/or application, a load test running for one hour with one simulated concurrent user. Examples of the calculation of Virtual User Hours typically required to run a load test using Loadster Cloud are as follows:
- Test running for two hours with 250 simulated concurrent users, would require at least 500 Virtual User Hours (250 virtual users * 2 hours = 500 Virtual User Hours);
- Test running for ten minutes with 6,000 simulated concurrent users, would require at least 1,000 Virtual User Hours (6,000 virtual users * 1/6 hour = 1,000 Virtual User); and
- Test running for one hour and six minutes simulating 250 concurrent users, would require at least 275 Virtual User Hours (250 virtual users * 1.1 hours = 275 Virtual User Hours).
"Your Data" means registration information, Team Member information, business and financial information, electronic transmissions, Your Loadster scripts, scenarios, data sets and reports, as well as all other data of any kind contained within e-mails or otherwise submitted by You or entered electronically in the course of Your use of Loadster Cloud, the Software or the Services.
2. USE RIGHTS AND LICENSE GRANT; RESTRICTIONS; YOUR RESPONSIBILITIES
2.1 Use Rights; Virtual User Hours. Subject to the terms of this Agreement, LP grants to You during the Subscription Term the non-transferable, non-exclusive right to permit Your Team Members to use Loadster Cloud (and any LP Materials provided to You), subject to Your Authorized Use Limits, solely for Your own internal business operations and in accordance with the LP Materials. Should your Authorized Use Limits be in Virtual User Hours, LP makes no representation or warranty that each Virtual User Hour, as used by Your Team Members, will be able to simulate a load test running for up to one hour with one simulated concurrent user. Each Virtual User Hour is designed to simulate, for a typical script and/or application, a load test running for one hour with one simulated concurrent user, but, depending on how complex the Team Member designs the scripts and/or the application, IP address or domain being tested by Loadster Cloud, this may not be possible in Your use of Loadster Cloud. If this happens to You, please contact Loadster for assistance in determining how many additional Virtual User Hours will be required to complete Your desired load test. During any test, there will be a ramp up and ramp down time, during which the test ramps up from zero to the designated number of simulated concurrent users and then back down to zero. Virtual User Hours are calculated for the entire test period, using the simulated concurrent users at the peak of the test, not the ramp up and down periods.
2.2 License Grant. Subject to the terms of this Agreement, LP grants to You during the Subscription Term the non-transferable, non-exclusive license (a) to install and use the Software, subject to Your Authorized Use Limits, solely for Your own internal business operations and in accordance with the LP Materials; (b) to make a single copy of the Software solely for archival purposes; and (c) store or install a copy of the Software on a storage device such as a network server, used only to install or run the Software on Your other computers on an internal network, provided (unless You are licensing on an individual named-user basis) that You acquire and dedicate a separate license for each separate computer/device on which the Software is installed, run or otherwise accessed from the storage device. A single license for the Software does not allow You to share the Software or use it concurrently on different computers/devices. You may permit agents or contractors (including, without limitation, outsourcers) to use the Software on Your behalf solely for Your own internal business purposes, provided that You are responsible for the agents', contractors' and outsourcers' compliance with this Agreement in such use. You must reproduce on all copies of the Software all copyright notices and other proprietary legends on the original copy of the Software.
2.3 Restrictions. You shall use Loadster Cloud and the Software only in accordance with the LP Materials and applicable laws and government regulations, including without limitation that YOU MAY NOT USE LOADSTER CLOUD, THE SOFTWARE OR THE LP MATERIALS WITH ANY APPLICATION, IP ADDRESSES OR DOMAINS THAT YOU DO NOT OWN, WHETHER SUCH USE IS TO LOAD TEST, SEND TRAFFIC OR OTHERWISE. The rights and licenses granted to You in this Agreement are subject to the following additional restrictions: (i) Your use of Loadster Cloud and Software shall be limited to Your Authorized Use Limits and Your authorized Team Members and shall not be used either outside those Authorized Use Limits, as evidenced on the Order Form; (ii) except as expressly authorized in Section 2.2, You shall not license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise commercially exploit or make Loadster Cloud, Software or the LP Technology available to any third party; (iii) You shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of Loadster Cloud, the Software or LP Technology, or access or use Loadster Cloud, the Software or LP Technology in order to build a similar or competitive product or service; (iv) You may not use the Software in connection with any software product or tools, or any other software as a service not provided by LP; (v) except as expressly stated herein, no part of Loadster Cloud, the Software or LP Technology may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; (vi) You shall not disclose any review of Loadster Cloud, the Software or Services, including but not limited to the results of any performance tests, to any third party without LP's prior written approval; and (vii) You acknowledge and agree that LP shall own all right, title and interest in and to all intellectual property rights (including all derivatives or improvements thereof) in the Loadster Cloud, Software and the LP Technology and any suggestions, enhancement requests, feedback, recommendations or other information provided by You or any of Your Team Members relating to Loadster Cloud, the Software or the LP Technology.
2.4 General Requirements for Use of Loadster Cloud. In order to use Loadster Cloud, You must have installed the Loadster Workbench on your computer, have access to the Internet and provide all equipment necessary to make and maintain such connection. If not designated in the Order Form, You shall designate a Service Administrator and notify LP of the identity and contact information for said Service Administrator. You agree to provide LP with Your Service Administrator's e-mail address, to promptly provide LP with any changes to such e-mail address, and to accept e-mails (or other electronic communications) from LP to Your Service Administrator. Except as otherwise provided in this Agreement, You further agree that LP may provide any and all notices, statements, and other communications to You through either e-mail to the Service Administrator or posting on Loadster Cloud.
2.5 Passwords, Access. Your Service Administrator may designate and add Team Members and shall provide and assign unique passwords and user names to each authorized Team Member. The Service Administrator shall ensure that multiple Team Members do not share a password or user name. You acknowledge and agree that You are prohibited from sharing passwords and/or user names with unauthorized users. You will be responsible for the confidentiality and use of Your passwords and user names. LP will act as though any electronic communications it receives under Your passwords, user names, and/or account numbers have been sent by You. You agree to immediately notify LP if You become aware of any loss or theft or unauthorized use of any of Your passwords, user names, and/or account numbers. You agree not to access Loadster Cloud by any means other than through the interfaces that are provided by LP.
2.6 Transmission Of Data. You understand that the technical processing and transmission of Your Data is necessary to Your use of Loadster Cloud, and consent to LP's interception and storage of Your Data. You understand that You or LP may be transmitting Your Data over the Internet, and over various networks, only part of which may be owned and/or operated by LP. You agree that LP is not responsible for any portions of Your Data that are lost, altered, intercepted or stored without authorization during the transmission of Your Data across networks not owned and/or operated by LP.
2.7 Your Responsibilities. You will (a) be responsible for Your Team Members' compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Loadster Cloud, Software, LP Technology and Services, and notify LP promptly of any such unauthorized access or use, and (d) use Loadster Cloud, Software, LP Technology and Services only in accordance with the LP Materials and applicable laws and government regulations.
3. PROFESSIONAL SERVICES; TECHNICAL SUPPORT
3.1 Professional Services. LP shall provide You with consulting, training or other Services set forth on the Order Form in exchange for the fees set forth on the Order Form.
3.2 Technical Support. Free versions of Loadster Cloud and the Software do not qualify for any Technical Support. For all other plans, during the Subscription Term, You will be entitled to access online user guides, knowledge bases and self-help tools, and any additional standard technical support resources (collectively, "Technical Support") offered by LP from time to time. LP's current Technical Support is described at loadster.app/support. Technical Support may be modified by LP in its sole discretion, effective immediately upon notice to You. LP reserves the right to provide some or all Technical Support from locations, and/or through use of third party providers, located worldwide.
3.3 Expenses. Except as may be otherwise provided herein or as pre-approved in writing, each party will be responsible for all expenses associated with the performance of its obligations hereunder.
4. SUBSCRIPTION FEES; PAYMENT
4.1 Subscription Plans. Unless otherwise provided in the applicable Order Form, use rights to Loadster Cloud and licenses to the Software are provided pursuant to a subscription plan for the designated Subscription Term. Each subscription plan has different Authorized Use Limits. If You desire to upgrade to higher level subscription plan, You may do so at any time by submitting a request to LP through the Loadster Cloud portal. If Your upgrade request is granted during a Subscription Term, You will be charged a pro-rated amount for any partial billing cycle. Thereafter, You will be charged the full upgraded plan amount for each billing cycle remaining in your Subscription Term. For example, if a customer purchased a Subscription Term of 12 months on January 1, with monthly billing at the $199 level, and upgraded on July 10th to the $299 level, the pro-rated charge for the remainder of the month would be $202.54 ((31-10)/31*$299) and the pro-rated credit for the pre-paid lower plan level would be $134.80 ((31-10)/31*$199). The customer would be invoiced on July 10th for $67.74 ($202.54- $134.80). Thereafter, for each month remaining in the Subscription Term, customer would be invoiced $299. You may downgrade and/or cancel a plan at any time by submitting a request to LP through the Loadster Cloud portal, however You will not be entitled to any refund of pre-paid fees.
4.2 Loadster Cloud Fuel. If authorized in the applicable Order Form, You may purchase Loadster Cloud Fuel to add additional Authorized Use Limits to an existing subscription plan. For customers authorized to purchase Loadster Cloud Fuel, it may be purchased either a la carte or on a subscription basis (e.g. monthly, yearly repeat purchase of specific amount of Loadster Cloud Fuel). If you purchase Loadster Cloud Fuel on a subscription basis, additional, a la carte Loadster Cloud Fuel may be added during any Subscription Term at any time. You may review Your Loadster Cloud Fuel and, if applicable, subscription through the Loadster Cloud portal. Loadster Cloud Fuel is not redeemable for cash or transferable. Loadster Cloud Fuel may only be used to purchase Authorized Use Limits. Loadster Cloud Fuel does not expire, but should Your account be terminated, any Loadster Cloud Fuel remaining in Your account at the time of termination will be lost.
4.3 Fees; Invoices. You will pay all applicable fees. The applicable fees for Loadster Cloud, Software and any additional Services are set forth in the Order Form and are payable in advance, irrevocable and non-refundable except as set forth in the Order Form and this Agreement. Fees are based on use rights and licenses purchased and not on actual usage. Should you purchase Loadster Cloud, the Software, and/or Loadster Cloud Fuel on a subscription basis, quantities purchased cannot be decreased during the relevant Subscription Term. You will provide LP with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to LP. If You provide credit card information, You authorize LP to charge such credit card for all items listed in the Order Form, including, if you purchase anything on a subscription basis, for the Initial Term(s) and any Renewal Term(s) as set forth in Section 7.1. Such charges shall be made in advance, in accordance with the billing frequency stated in the applicable Order Form. If the Order Form specifies payment upon invoice, LP will invoice You at the time of the initial Order Form and subsequently as set forth on the Order Form; all amounts invoiced hereunder shall be due within thirty (30) days of Your receipt of LP's invoice. Late payments shall be subject to a service charge of one and a half percent (1.5 %) per month, or the maximum charge permitted by law, whichever is less. Further, LP may condition future payments, including future subscriptions and future subscription renewals, on payment terms shorter than those specified in this Agreement.
4.4 Taxes. You shall pay all personal property, sales, use, value-added, withholding and similar taxes (other than taxes on LP's net income) arising from the transactions described in this Agreement, even if such amounts are not listed on an Order Form. To the extent You are exempt from sales or other taxes, You agree to provide LP, upon request, with the appropriate exemption certificate.
4.5 Suspension Right. LP reserves the right to suspend Your access and/or use when any payment is overdue or when LP believes that You are using Loadster Cloud, the Software, the LP Technology, and/or any Services with (a) any applications, IP addresses or domain names that You do not own and/or (b) not in accordance with the LP Materials, this Agreement, and applicable laws and government regulations. You agree that LP shall not be liable to You nor to any third party for any suspension pursuant to this Section 4.5. If You are suspended for failure to pay, upon payment in full of all amounts overdue (including any interest owed), You may request the reactivation of Your account. LP shall reactivate Your account within fourteen (14) days of Your paying LP in advance all applicable reactivation fees, provided that LP has not already terminated pursuant to Section 7 of this Agreement.
5. INTELLECTUAL PROPERTY RIGHTS; YOUR DATA; CONFIDENTIALITY
5.1 Intellectual Property Rights. LP and its licensors own all right, title and interest to the LP Technology, Loadster Cloud, and the Software and any modifications, ideas, or recommendations provided by You, together with all associated intellectual property rights. This Agreement does not convey or transfer any ownership in Loadster Cloud, the Software or LP Technology, or their associated intellectual property rights.
5.2 Your Data; Your Loadster Cloud Reports. As between You and LP, You shall remain the sole owner of Your Data. Subject to the terms and conditions of this Agreement, You hereby grant to LP the non-exclusive right to use, copy, distribute and display Your Data solely in connection with LP's operation of Loadster Cloud and enforcement of this Agreement. You, not LP, shall have responsibility for the accuracy, integrity, and reliability of Your Data and Your use of Loadster Cloud or the Software, and LP shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Data or any destruction, damage, loss or failure caused by Your use of Loadster Cloud or the Software. LP will use commercially reasonable efforts to protect any of Your Data provided to LP by You in the course of using Loadster Cloud, the Software or Services as confidential in accordance with Section 5.3 below. Notwithstanding the foregoing, You acknowledge and agree that LP may deliver Your Data and other information containing Your Data to You by posting it on a non-encrypted, open internet address (the "Report Address") provided that such internet address consists of a randomly generated character string of at least twenty (20) characters. LP may either email You a Report Address or provide You with the Report Address through Your Loadster Cloud portal. You agree that You are solely responsible for who You choose to share the Report Address and that LP shall have no liability for any harm or damages caused by anyone accessing the Report Address.
5.3 Confidential Information. For purposes of this Agreement, confidential information shall include the business terms in the Order Form, Your Data, Loadster Cloud, the Software and LP Materials, and any other information that is clearly identified in writing at the time of disclosure as confidential ("Confidential Information"). Each party agrees: (a) to receive and use commercially reasonable efforts to maintain in confidence all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights hereunder; (c) to limit the internal dissemination of Confidential Information to those officers and employees, if any, of the recipient who have a need to know and an obligation to protect it; and (d) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). LP may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services for LP. Confidential Information shall not include information that: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient; or (5) was independently developed by the recipient without use of or reference to any Confidential Information belonging to the disclosing party. This Section 5.3 will not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure.
5.4 Third Party Software. Use of some third-party materials included in the Software may be subject to terms and conditions found in a separate agreement or "Read Me" file located in or near such materials. You acknowledge (a) Your receipt of such separate written agreement or "Read Me" file; (b) that You are bound by such terms and conditions; (c) and that Your breach of such terms and conditions shall also be deemed a breach of this Agreement.
6. LIMITED WARRANTIES; INDEMNIFICATION; LIABILITY LIMITATIONS
6.1 Free Plans and Licenses are Provided "AS IS". To the fullest extent permitted by law, any access to the Software or Loadster Cloud provided free of charge are provided on an "AS IS" basis, WITHOUT REMEDIES OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF LOADSTER CLOUD AND THE SOFTWARE IS BORNE BY YOU.
6.2 Loadster Cloud Warranty. For any rights or access provided for a charge, LP warrants that Loadster Cloud and Software will function and perform substantially in accordance with its online documentation (and any technical specifications included in the LP Materials). Your sole and exclusive remedy for LP's breach of this warranty shall be that LP shall be required to use commercially reasonable efforts to modify Loadster Cloud and the Software to comply with the foregoing warranty and if LP is unable to restore such functionality You shall be entitled to terminate the Agreement and shall be entitled to receive a refund for the amount You paid for (a) any unused Loadster Cloud Fuel remaining in Your account at the time of termination and (b) a pro-rated amount of the pre-paid use fees for any time remaining on your Subscription Term at the time of termination. LP shall have no obligation with respect to a warranty claim unless notified in writing of such claim within fifteen (15) days of the first instance of any material functionality or performance problem. This limited warranty is conditioned upon (a) Your proper use of Loadster Cloud and the Software; (b) the absence of any additions or modifications, or attempted additions or modifications, to Loadster Cloud and the Software by You or those acting on Your behalf; (c) the absence of any component or system problems not caused by Loadster Cloud or the Software; and (d) the absence of any intentional or negligent act or other cause attributable to You which affects the operability or serviceability of Loadster Cloud or the Software. LP DOES NOT WARRANT THAT LOADSTER CLOUD OR THE SOFTWARE WILL BE ERROR-FREE OR THAT, AS USED BY YOU, EACH VIRTUAL USER HOUR WILL BE ABLE TO SIMULATE A LOAD TEST RUNNING FOR UP TO ONE HOUR WITH ONE SIMULATED CONCURRENT USER. YOU ACKNOWLEDGE THAT IT IS NOT A BREACH OF THE WARRANTY SET FORTH IN THIS SECTION 6.2 SHOULD YOUR USE OF LOADSTER CLOUD REQUIRE THE PURCHASE OF ADDITIONAL VIRTUAL USER HOURS TO COMPLETE YOUR DESIRED LOAD TEST. YOU FURTHER ACKNOWLEDGE THAT THERE IS NO GUARANTEE THAT YOUR TEST WILL PERFORM AS YOU ANTICIPATE AND AS WITH ALL LOAD TESTING, IT IS POSSIBLE THAT YOUR TEST WILL RESULT IN A FAILURE OF YOUR APPLICATION. LP DOES NOT REPRESENT OR WARRANT THAT LOADSTER CLOUD OR THE SOFTWARE WILL SATISFY YOUR REQUIREMENTS; WILL OPERATE WITHOUT INTERRUPTION; IS PRIVATE, SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTIONS, ERRORS, OR OTHER PROGRAM LIMITATIONS.
6.3 Services Warranty. LP warrants that Services will be performed in a workmanlike manner. For any breach of this warranty, Your exclusive remedy shall be the re-performance of the deficient Services, and if LP is unable to re-perform the deficient Services as warranted, You shall be entitled to recover that portion of the fees paid to LP for such deficient Services, and such refund shall be LP's entire liability.
6.4 Disclaimer Of Warranties. EXCEPT AS STATED IN SECTIONS 6.2 AND 6.3, LOADSTER CLOUD, THE SOFTWARE, THE LP TECHNOLOGY AND ALL SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE WARRANTIES STATED IN SECTIONS 6.2 AND 6.3 ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY LP. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU ASSUME ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SOFTWARE, SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR YOUR PURPOSES. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
6.5 Limitation of Liability. YOU ACKNOWLEDGE AND AGREE THAT THERE IS POSSIBILITY OF COLLATERAL DAMAGE FROM ANY LOAD TESTING (INCLUDING LOAD TESTING USING LOADSTER CLOUD AND SOFTWARE) AND THAT THE CONSIDERATION CHARGED BY LP HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY LP OF THE RISK OF YOUR INCIDENTAL OR CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LP BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING LOST PROFITS, LOST SAVINGS, CURRENCY CONVERSION LOSSES, OR LOSS OF OTHER ECONOMIC ADVANTAGE) ARISING FROM BREACH OF WARRANTY OR BREACH OF CONTRACT, OR NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR LP'S PERFORMANCE HEREUNDER, INCLUDING WITHOUT LIMITATION (A) LOADSTER CLOUD, THE SOFTWARE, LP TECHNOLOGY OR SERVICES, (B) ANY INTERRUPTION OF USE OF LOADSTER CLOUD, THE SOFTWARE, LP TECHNOLOGY OR SERVICES, OR (C) FOR LOSS, INACCURACY OR CORRUPTION OF YOUR DATA, EVEN IF LP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SUBJECT TO ANY GREATER AMOUNT SET FORTH IN THE REFUND PROVISIONS IN SECTIONS 6.2 AND 6.3, IN NO EVENT SHALL LP'S LIABILITY HEREUNDER EXCEED THE AMOUNT THAT YOU PAID TO LP UNDER THIS AGREEMENT FOR THE PARTICULAR LOAD TEST GIVING RISE TO THE LIABILITY.
6.6 Indemnification by You. You will defend LP against any claim, demand, suit or proceeding made or brought against LP by a third party alleging that Your Data, or Your use of Loadster Cloud, the Software, any LP Technology, or any Service in breach of this Agreement, infringes or misappropriates such third party's intellectual property rights or violates applicable law (a "Claim"), and will indemnify LP from any costs, liabilities, and expenses (including, but not limited to, reasonable attorneys' fees) awarded against LP as a result of, or for any amounts paid by LP under a settlement of, a Claim; provided that LP (a) promptly gives You written notice of the Claim, (b) gives You sole control of the defense and settlement of the Claim (except that You may not settle any Claim unless it unconditionally releases LP of all liability), and (c) gives You with all reasonable available information and assistance necessary to perform Your obligations under this Section, at Your expense.
7. TERM AND TERMINATION
7.1 Initial Term; Renewal Terms. If you purchase use or access as part of a subscription, the Subscription Term shall commence upon the date set forth on the Order Form and shall continue for the period of time set forth in the Order Form. Except as otherwise provided in an Order Form, UPON THE EXPIRATION OF THE INITIAL TERM, THE SUBSCRIPTION TERM SHALL AUTOMATICALLY RENEW FOR SUCCESSIVE RENEWAL TERMS OF EQUAL LENGTH AS THE INITIAL TERM AT LP'S THEN CURRENT FEES UNLESS EITHER PARTY PROVIDES NOTICE OF NON-RENEWAL AS SET FORTH IN THIS SECTION 7.1. LP will provide You with a notice of non-renewal or a notice of the fees due for each Renewal Term at least thirty (30) days prior to the commencement of the Renewal Term in the form of a notice posted in Your account in Loadster Cloud. You acknowledge that it is Your responsibility to monitor Your account for such notices. You may elect not to renew a Subscription Term by providing notice to LP prior to the commencement of the Renewal Term. Such notice must be sent to LP via the electronic mechanism for sending notice to LP provided in Your account in Loadster Cloud.
7.2 Termination; Effect of Expiration or Termination. In the event of any breach of this Agreement by either party, the non-breaching party shall have the right to terminate the Agreement (or the relevant Order Form) for cause if such breach has not been cured within 30 days of written notice from the non-breaching party specifying the breach in detail. LP shall also have the suspension rights set forth in Section 4.5 and a right to terminate this Agreement (or any Order Form) for cause if You are in breach of any other agreement with LP. Upon any termination of the Agreement or an Order Form, (a) Your right to access and use Loadster Cloud, the Software and LP Technology shall terminate, including Your losing all Loadster Cloud Fuel remaining in Your account at the time of termination; and (b) if LP notifies You that it needs to remove Software or LP Materials installed on Your machines, You agree to promptly do so and provide LP with written certification of the removal. Upon any termination or expiration of this Agreement, You agree that (a) LP has no obligation to retain Your Data or any LP Technology required to provide You with Loadster Cloud and (b) both may be irretrievably deleted from Loadster Cloud and all Report Addresses. Your obligation to make a payment of any outstanding, unpaid fees and reimbursable expenses shall survive termination of this Agreement or any Order Form. In addition, the following provisions shall survive any termination of this Agreement: Sections 4, 5, 6, 7, and 8.
8. GENERAL PROVISIONS
8.1 Notice. Notices regarding this Agreement to LP shall be in writing and sent by first class mail or overnight courier (if from within the USA), or international courier, addressed to LP at the address provided on the Order Form or LP Materials. LP may give notice applicable to LP's general Loadster Cloud customer base by means of a general notice on the Loadster Cloud portal, and notices specific to You by electronic mail to Your Service Administrator's e-mail address on record with LP, or by written communication sent by first class mail or overnight courier (if to an address within the USA), or international courier, to Your address on record in LP's account information. All notices shall be deemed to have been given three days after mailing or posting (if sent by first class mail), upon delivery in the case of courier, or 12 hours after sending by confirmed facsimile, e-mail or posting to the Loadster Cloud portal.
8.2 Audit and Verification. At LP's written request, but not more frequently than once per calendar year, You shall furnish LP with a document signed by Your Service Administrator verifying that Loadster Cloud and the Software is being used pursuant to the provisions of this Agreement and the applicable Order Form. LP reserves the right to audit Your use of Loadster Cloud and the Software no more than once per calendar year at LP's expense. LP shall schedule any audit at least thirty (30) days in advance, and any such audit shall be conducted during regular business hours at Your facilities and shall not unreasonably interfere with Your business activities. If such audit reveals that You have underpaid fees to LP, You shall promptly pay to LP such fees pursuant to the pricing set forth in the applicable Order Form, plus applicable interest and any expenses associated with conducting the audit.
8.3 Export. You agree that U.S. export control laws and other applicable export and import laws govern Your use of Loadster Cloud and the Software, including LP Technology. You represent that You are not a citizen of an embargoed country or prohibited end user under applicable U.S. export and anti-terrorism laws, regulations and lists. You will not use, export or allow a third party to use or export Loadster Cloud, the Software or LP Technology in any manner that would violate applicable law, including but not limited to export control laws and regulations.
8.4 Force Majeure. Except for Your obligation to pay for Loadster Cloud, the Software or other Services rendered, neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency, shortage of materials, acts of terrorism, or the stability or availability of the Internet or a portion thereof.
8.5 Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of Arizona and controlling U.S. federal law. The Uniform Computer Information Transactions Act, the United Nations Convention on the International Sale of Goods, and choice of law rules of any jurisdiction will not apply to this Agreement. Any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in Maricopa County, Arizona, and each party hereby submits to the personal jurisdiction of such courts and waives any defense relating to venue or forum non convenience.
8.6 Integration; Modification. This Agreement together with the Service Level Agreement and any applicable Order Form, represents the parties' entire understanding relating to Loadster Cloud, the LP Technology and the Services, and supersedes any prior or contemporaneous, conflicting or additional, communications. Except as otherwise set forth herein, the terms and conditions of this Agreement may only be amended by written agreement of the parties. Nothing contained in any purchase order submitted by You other than order dates, identity, location, quantity and price shall in any way serve to modify or add to the terms of this Agreement or the Order Form.
8.7 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
8.8 Relationship of Parties. No joint venture, partnership, employment, or agency relationship exists between LP and You as a result of this Agreement or use of Loadster Cloud.
8.9 Assignment. You may not assign this Agreement without the prior written approval of LP. Any purported assignment in violation of this Section shall be void.
8.10 Waiver. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
8.11 US Government Restricted Rights Notice. This Section 8.11 applies to all acquisitions of the Software by or for the federal government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the federal government. By accepting delivery of the Software, the government hereby agrees that the Software qualifies as "commercial items," as that term is defined at Federal Acquisition Regulation ("FAR") (48 C.F.R.) 2.101, consisting of "commercial" computer software and "commercial computer software documentation" within the meaning of the acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the government's use and disclosure of the Software, and shall supersede any conflicting contractual terms or conditions. If this Agreement fails to meet the government's need or is inconsistent in any respect with Federal law, the government agrees to return the Software, unused. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): "Restricted Rights - Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (OCT. 1988).