BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY SUBMITTING A 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 PLATFORM AND/OR SOFTWARE.
This Agreement was last updated on January 18, 2022. It is effective between You and Loadster as of the date of You accepting this Agreement.
"Authorized Use Limits" means the use limitations placed on Your use of the Loadster Platform. Examples of possible Authorized Use Limits include Team Members, Cloud Regions, Bots, Bot Hours, tests, bandwidth limits, and limits on the number of applications, 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 Loadster in the form of Loadster Fuel.
"Cloud Regions" means a region within the Loadster Platform, as defined by Loadster, 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 Loadster (and its third party service providers) for the purpose of load testing.
"Loadster Engine" means the Loadster Engine software product that you license from Loadster pursuant to this Agreement. The Loadster Engine is separate from Loadster Cloud. It is not required for use of Loadster Cloud, but may be used in combination with it. An additional fee may be required for use of the Loadster Engine.
"Loadster Fuel" means the virtual fuel purchased by You which can then be used on the Loadster Platform to obtain Authorized Use Limits to run load tests. The amount of Loadster Fuel consumed when you run load tests is calculated based on the type of Bot(s) and the number of Bot Hours, as described on the Order Form(s) and/or Loadster Materials.
"Loadster Materials" means any web pages, documentation, user guides, or other materials provided by Loadster to You in connection with your use of Loadster Cloud and the Software.
"Loadster Platform" includes Loadster Cloud, Software, Loadster Materials, and Loadster Technology.
"Loadster Technology" means Loadster's proprietary technology and intellectual property rights therein (including, but not limited to, Loadster Materials, Software, documents, processes, algorithms, user interfaces, patent, copyright and trade secret rights) used by Loadster in providing the Loadster Platform 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 Loadster, including any addenda and supplements thereto. Ordering documents may be online web interfaces/pages.
"Report URL" means a uniquely generated URL to a Loadster test report or reports that may exist in your account following a load test, as defined in Section 5.2 below.
"Service Administrator" means a person that You designate to purchase usage of the Loadster Platform, 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, support, training or other professional services provided by Loadster to You pursuant to the terms of an Order Form.
"Software" means the particular Loadster proprietary software program(s) supplied by Loadster to You, including any Software updates and Documentation, in connection with your use of the Loadster Platform. Software may include Loadster Engine or other 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 the Loadster Platform purchased by you. If you have a free account and/or Loadster Fuel, the Subscription Term means the time that your free account remains active and/or the time that some amount of Loadster Fuel remains in your account.
"Team Member(s)" means Your employees, consultants, contractors or agents authorized by Your Service Administrator(s) to use the Loadster Platform.
"Technical Support" or "Support" means the end user support for Loadster Cloud and the Software provided by Loadster during the Subscription Term, as defined in Section 3.2 below.
"Bots" or "Virtual Users" means the simulated users allocated on the Loadster Platform to generate network requests against Your system(s) concurrently for load testing. Where Your Authorized Use Limits permit running concurrent tests, your total number of allocated Bots is determined on the total number of Bots allocated across all concurrent tests.
"Bot Hours" or "Virtual User Hours" means the number of allocated Bots multiplied by the number of hours for which they are allocated. Examples of the Bot Hours calculation are as follows:
- A test running for two hours with 250 simulated concurrent users would require at least 500 Bot Hours (250 Bots * 2 hours = 500 Bot Hours).
- A test running for ten minutes with 6,000 simulated concurrent users, would require at least 1,000 Bot Hours (6,000 Bots * 1/6 hour = 1,000 Bot Hours).
- A test running for one hour and six minutes simulating 250 concurrent users, would require at least 275 Bot Hours (250 Bots * 1.1 hours = 275 Bot Hours).
"Test Hours" means the sum of the duration of all Your tests, calculated from start to finish, regardless of the number of Bots active in a given test. For example, if You run 3 tests in a period, with each test lasting an hour, that equals 3 Test Hours.
"Protocol Bots" are a type of Bot that runs scripted HTTP requests. Protocol Bots control an HTTP user agent and not a full web browser.
"Browser Bots" are a type of Bot that controls an automated headless web browser, such as the Chromium browser. Browser Bots may require higher Authorized Use Limits than Protocol Bots, for example, they may consume more Loadster Fuel per Bot Hour.
"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 emails or otherwise submitted by You or entered electronically in the course of Your use the Loadster Platform and Services.
2. USE RIGHTS AND LICENSE GRANT; RESTRICTIONS; YOUR RESPONSIBILITIES
2.1 Use Rights; Bot Hours. Subject to the terms of this Agreement, Loadster grants to You during the Subscription Term, or as long as you own Loadster Fuel, the non-transferable, non-exclusive right to permit Your Team Members to use the Loadster Platform (and any Loadster Materials provided to You), subject to Your Authorized Use Limits, solely for Your own business operations and in accordance with the Loadster Materials. Should your Authorized Use Limits be in Bot Hours or Loadster Fuel, Loadster makes no representation or warranty that each Bot 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 Bot 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 the application, IP address, or domain being tested by the Loadster Platform, this may not be possible in Your use of the Loadster Platform. If this happens to You, please contact Loadster for assistance in determining how many additional Bot 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. Bot Hours are calculated based on the entire test duration in hours multiplied by the peak number of Bots.
2.2 License Grant. Subject to the terms of this Agreement, Loadster grants to You during the Subscription Term the non-transferable, non-exclusive license to install and use the Software, subject to Your Authorized Use Limits, solely for Your own business operations and in accordance with the Loadster Materials. You may permit agents or contractors (including, without limitation, outsourcers) to use the Software on Your behalf solely for Your own 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 the Loadster Platform only in accordance with the Loadster Materials and applicable laws and government regulations, including without limitation that YOU MAY NOT USE THE LOADSTER PLATFORM, THE SOFTWARE, OR THE LOADSTER MATERIALS WITH ANY APPLICATION, IP ADDRESSES OR DOMAINS THAT YOU DO NOT OWN, WHETHER SUCH USE IS TO LOAD TEST, SEND TRAFFIC OR OTHERWISE, except with permission from the respective owner(s). The rights and licenses granted to You in this Agreement are subject to the following additional restrictions: (i) Your use of the Loadster Platform 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 Loadster 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 Loadster Technology, or access or use Loadster Cloud, the Software or Loadster 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 Loadster; (v) except as expressly stated herein, no part of Loadster Cloud, the Software or Loadster 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; and (vi) You acknowledge and agree that Loadster shall own all right, title and interest in and to all intellectual property rights (including all derivatives or improvements thereof) in Loadster Cloud, the Software and the Loadster 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 Loadster Technology.
2.4 General Requirements for Use of the Loadster Platform. In order to use the Loadster Platform, You must 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 Loadster of the identity and contact information for said Service Administrator. You agree to provide Loadster with Your Service Administrator's email address, to promptly provide Loadster with any changes to such email address, and to accept emails (or other electronic communications) from Loadster to Your Service Administrator. Except as otherwise provided in this Agreement, You further agree that Loadster may provide any and all notices, statements, and other communications to You through either email to the Service Administrator or through the Loadster Platform.
2.5 Passwords, Access. Your Service Administrator may designate and add Team Members and shall provide accounts to each authorized Team Member. The Service Administrator shall ensure that Team Members keep their account credentials secure. You will be responsible for the confidentiality and use of Your passwords and user names. Loadster will act as though any electronic communications it receives under Your passwords, user names, and/or accounts have been sent by You. You agree to immediately notify Loadster 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 the Loadster Platform by any means other than through the interfaces that are provided by Loadster.
2.6 Transmission Of Data. You understand that the technical processing and transmission of Your Data is necessary to Your use of the Loadster Platform, and consent to Loadster's interception and storage of Your Data. You understand that You or Loadster may be transmitting Your Data over the Internet, and over various networks, only part of which may be owned and/or operated by Loadster. You agree that Loadster 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 Loadster.
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, Loadster Technology and Services, and notify Loadster promptly of any such unauthorized access or use, and (d) use Loadster Cloud, Software, Loadster Technology and Services only in accordance with the Loadster Materials and applicable laws and government regulations.
3. PROFESSIONAL SERVICES; TECHNICAL SUPPORT
3.1 Professional Services. Loadster may at times 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 the Loadster Platform and the Software are not entitled to any Technical Support. For all other plans, during the Subscription Term, You will be entitled to access online documentation and self-help tools, and any additional standard technical support resources (collectively, "Technical Support") offered by Loadster from time to time. Loadster's current Technical Support is described at loadster.app/support. Technical Support may be modified by Loadster in its sole discretion, effective immediately. Loadster reserves the right to provide some or all Technical Support from worldwide locations and/or through use of third party providers.
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 the Loadster Platform 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. Authorized Use Limits may include a specific number of Bot Hours, Test Hours, Protocol Bots, Browser Bots, and/or some other limit as specified in the subscription plan. Subscription plans that do not explicitly specify one or more of these limits are still subject to acceptable use limits. The determination of what usage is acceptable is at Loadster's sole discretion. If you are unsure whether your intended usage is acceptable for your subscription plan, you may contact Loadster for clarification. If You desire to upgrade to higher level subscription plan, You may do so at any time by submitting a request to Loadster through an Order Form on the Loadster dashboard. 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 July 1st, 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 or cancel a plan at any time by submitting a request to Loadster through the Loadster dashboard, however You will not be entitled to any refund of pre-paid fees.
4.2 Loadster Fuel. If authorized in the applicable Order Form, You may purchase Loadster Fuel to add additional Authorized Use Limits. Loadster Fuel may at times be available for purchase on a subscription basis and/or an a la carte basis. If you purchase Loadster Fuel on a subscription basis, additional a la carte Loadster Fuel may be added during any Subscription Term at any time. Unused Loadster Fuel purchased on a subscription basis may expire or be lost when the subscription is canceled. You may review Your Loadster Fuel and, if applicable, subscription through the Loadster dashboard. Loadster Fuel is not redeemable for cash or transferable. Loadster Fuel may only be used to purchase Authorized Use Limits. Loadster Fuel purchased on an a la carte basis does not expire, but should Your account be terminated, any Loadster 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(s) 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 purchased and not on actual usage. You will provide Loadster with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Loadster. If You provide credit card information, You authorize Loadster 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, Loadster will invoice You at the time you submit the initial Order Form and subsequently as set forth on the Order Form; all amounts invoiced hereunder shall be due no later than thirty (30) days of Your receipt of Loadster's invoice, unless otherwise specified in writing by Loadster. 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, Loadster 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 Loadster'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 Loadster, upon request, with the appropriate exemption certificate.
4.5 Suspension Right. Loadster reserves the right to suspend Your access and/or use when any payment is overdue or when Loadster believes that You are using Loadster Cloud, the Software, the Loadster 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 Loadster Materials, this Agreement, and applicable laws and government regulations and/or (c) for any purpose other than bona fide load testing of Your websites and web applications. Examples of usage that is not permitted include but are not limited to: web scraping or crawling, batch processing, mining cryptocurrency, denial of service attacks against other parties, and excessive or wasteful use. Determination whether a particular purpose is permitted is at Loadster's sole discretion. You agree that Loadster 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.
5. INTELLECTUAL PROPERTY RIGHTS; YOUR DATA; CONFIDENTIALITY
5.1 Intellectual Property Rights. Loadster and its licensors own all right, title and interest to the Loadster 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 Loadster Technology, or their associated intellectual property rights.
5.2 Your Data; Your Loadster Cloud Reports. As between You and Loadster, You shall remain the sole owner of Your Data. Subject to the terms and conditions of this Agreement, You hereby grant to Loadster the non-exclusive right to use, copy, distribute and display Your Data solely in connection with Loadster's operation of Loadster Cloud and enforcement of this Agreement. You, not Loadster, shall have responsibility for the accuracy, integrity, and reliability of Your Data and Your use of Loadster Cloud or the Software, and Loadster 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. Loadster will use commercially reasonable efforts to protect any of Your Data provided to Loadster 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 Loadster may deliver Your Data and other information containing Your Data to You by posting it on a non-encrypted, open internet address (the "Report URL") provided that such internet address consists of a randomly generated character string of at least sixteen (16) characters. Loadster may either email You a Report URL or provide You with the Report URL through Your Loadster dashboard. You agree that You are solely responsible for who You choose to share the Report URL and that Loadster shall have no liability for any harm or damages caused by anyone accessing the Report URL.
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 Loadster 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). Loadster 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 Loadster. 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.
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 THE LOADSTER PLATFORM IS BORNE BY YOU.
6.2 Loadster Platform Warranty. For any rights or access provided for a charge, Loadster warrants that the Loadster Platform will function and perform substantially in accordance with its online documentation (and any technical specifications included in the Loadster Materials). Your sole and exclusive remedy for Loadster's breach of this warranty shall be that Loadster shall be required to use commercially reasonable efforts to modify the Loadster Platform to comply with the foregoing warranty and if Loadster 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 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. Loadster 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. LOADSTER DOES NOT WARRANT THAT LOADSTER CLOUD OR THE SOFTWARE WILL BE ERROR-FREE OR THAT, AS USED BY YOU, EACH BOT 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 BOT 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. LOADSTER 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. Loadster 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 Loadster is unable to re-perform the deficient Services as warranted, You shall be entitled to recover that portion of the fees paid to Loadster for such deficient Services, and such refund shall be Loadster's entire liability.
6.4 Disclaimer Of Warranties. EXCEPT AS STATED IN SECTIONS 6.2 AND 6.3, LOADSTER CLOUD, THE SOFTWARE, THE LOADSTER 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 LOADSTER. 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 LOADSTER HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY LOADSTER OF THE RISK OF YOUR INCIDENTAL OR CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LOADSTER 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 LOADSTER'S PERFORMANCE HEREUNDER, INCLUDING WITHOUT LIMITATION (A) LOADSTER CLOUD, THE SOFTWARE, LOADSTER TECHNOLOGY OR SERVICES, (B) ANY INTERRUPTION OF USE OF LOADSTER CLOUD, THE SOFTWARE, LOADSTER TECHNOLOGY OR SERVICES, OR (C) FOR LOSS, INACCURACY OR CORRUPTION OF YOUR DATA, EVEN IF LOADSTER 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 LOADSTER'S LIABILITY HEREUNDER EXCEED THE AMOUNT THAT YOU PAID TO LOADSTER UNDER THIS AGREEMENT FOR THE PARTICULAR LOAD TEST GIVING RISE TO THE LIABILITY.
6.6 Indemnification by You. You will defend Loadster against any claim, demand, suit or proceeding made or brought against Loadster by a third party alleging that Your Data, or Your use of Loadster Cloud, the Software, any Loadster Technology, or any Service in breach of this Agreement, infringes or misappropriates such third party's intellectual property rights or violates applicable law or otherwise harms such third party (a "Claim"), and will indemnify Loadster from any costs, liabilities, and expenses (including, but not limited to, reasonable attorneys' fees) awarded against Loadster as a result of, or for any amounts paid by Loadster under a settlement of, a Claim; provided that Loadster (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 Loadster 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 LOADSTER'S THEN CURRENT FEES UNLESS EITHER PARTY PROVIDES NOTICE OF NON-RENEWAL AS SET FORTH IN THIS SECTION 7.1. If You initially paid by credit card, Loadster will charge the renewal fees to Your credit card on file on the renewal date. If You initially paid with a purchase order, Loadster will provide You with a notice of non-renewal or a notice of the fees due for each Renewal Term. You acknowledge that it is Your responsibility to monitor Your account and billing contact email addresses for such notices. You may elect not to renew a Subscription Term by providing notice to Loadster prior to the commencement of the Renewal Term, or by canceling the subscription in your Loadster account.
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. Loadster 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 Loadster. Upon any termination of the Agreement or an Order Form, (a) Your right to access and use the Loadster Platform shall terminate, including Your losing all Loadster Fuel remaining in Your account at the time of termination; and (b) if Loadster notifies You that it needs to remove Software or Loadster Materials installed on Your machines, You agree to promptly do so and provide Loadster with written certification of the removal. Upon any termination or expiration of this Agreement, You agree that (a) Loadster has no obligation to retain Your Data or any Loadster Technology required to provide You with Loadster Cloud and (b) both may be irretrievably deleted from Loadster Cloud and all Report URL. 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 Loadster shall be in writing and sent by first class mail or overnight courier (if from within the USA), or international courier, addressed to Loadster at the address provided on the Order Form or Loadster Materials. Loadster may give notice applicable to Loadster's general Loadster Cloud customer base by means of a general notice on the Loadster dashboard, and notices specific to You by electronic mail to Your Service Administrator's email address on record with Loadster, 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 Loadster'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, email or posting to the Loadster dashboard.
8.2 Verification. At Loadster's written request, but not more frequently than once per calendar year, You shall furnish Loadster 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. If such audit reveals that You have underpaid fees to Loadster, You shall promptly pay to Loadster such fees pursuant to the pricing set forth in the applicable Order Form, plus applicable interest.
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 Loadster 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 Loadster 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 Loadster 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 Loadster and You as a result of this Agreement or use of the Loadster Platform.
8.9 Assignment. You may not assign this Agreement without the prior written approval of Loadster. 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).