Legal Terms & Conditions

Loadster Cloud Terms of Use

The following Terms of Use (the “Agreement”) govern Your use of Loadster Cloud, LP Technology and any related Services provided to You by Brickyard Technologies, Inc., dba Loadster Performance (“LP”).

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.

This Agreement was last updated on September 1, 2013. It is effective between You and LP as of the date of You accepting this Agreement.

1. DEFINITIONS

“Authorized Use Limits” means the use limitations placed on Your use of Loadster Cloud. Examples of possible Authorized Use Limits include Virtual User Hours, authorized Loadster Cloud Engines, bandwidth limits and limits on the number of application, IP addresses and domains that may be tested.

“Client” means those specific business organizations or divisions within Your organization that desire to use Loadster Cloud. The number and types of Your Clients initially authorized to use Loadster Cloud are set forth on the Order Form.

“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 Cloud Engines” means the cloud engines that You are authorized to use as part of Loadster Cloud to simulate concurrent users for load testing. Loadster Cloud Engines shall be deemed part of Loadster Cloud for purposes of this Agreement.

“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 stand-alone Loadster Engine software product that you may license from LP pursuant to the standard Loadster End User License 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.

“Loadster Cloud Fuel” means the virtual fuel purchased by You which can then be used within Loadster Cloud to obtain Authorized Use Limits to run virtual load testing.

“Loadster Workbench” mean the Loadster Workbench software product (including the Loadster Workbench Engine) that LP provides to You (by download or otherwise) and 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. You may license Loadster Workbench from LP pursuant to the standard Loadster End User License Agreement.

“LP Materials” means any documentation, user guides or other materials provided by LP to You in connection with your use of Loadster Cloud.

“LP Technology” means LP’s proprietary technology and intellectual property rights therein (including, but not limited to, Loadster Workbench, 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 document(s) specifying the Loadster Cloud and/or Services to be provided hereunder that is entered into between You and LP, including any addenda and supplements thereto.

“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, authorize Users under the Agreement, create accounts for additional Clients and otherwise administer Your use of Loadster Cloud 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.

“Subscription Term” means the initial use term (“Initial Term”) set forth on Your Order Form and any additional renewal terms (each, a “Renewal Term”) to Loadster Cloud purchased by You.

“Technical Support” or “Support” means the end user support for Loadster Cloud provided by LP during the Subscription Term, as defined in Section 3.2 below.

“User(s)” means Your employees, consultants, contractors or agents authorized by Your Service Administrator to use Loadster Cloud.

“Virtual User Hour(s)” means, for a typical script and/or application, a load test running for up to 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:
a. 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);
b. Test running for ten minutes with 10,000 simulated concurrent users, would require at least 10,000 Virtual User Hours (10,000 virtual users * 1 hour = 10,000 Virtual User Hours); and
c. Test running for one hour and six minutes simulating 250 concurrent users, would require at least 500 Virtual User Hours (250 virtual users * 2 hours = 500 Virtual User Hours).

“Your Data” means registration information, User and Client 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 or the Services.

2. USE RIGHTS AND 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 Users to use Loadster Cloud (and any LP Materials provided to You), subject to Your Authorized Use Limits, solely for Your own internal business operations. 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 Users, 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 up to one hour with one simulated concurrent user, but, depending on how complex the User 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 Restrictions. YOU MAY NOT USE LOADSTER CLOUD 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 granted to You in this Agreement are subject to the following additional restrictions: (i) Your use of Loadster Cloud shall be limited to Your Authorized Use Limits and Your authorized Users and shall not be used either outside those Authorized Use Limits or on behalf of Clients other than those Clients for whom You have purchased use rights, as evidenced on the Order Form; (ii) You shall not license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise commercially exploit or make Loadster Cloud 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 or LP Technology, or access or use Loadster Cloud or LP Technology in order to build a similar or competitive product or service; (iv) You may not use the Loadster Workbench or Loadster Engine 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 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, 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 and the LP Technology and any suggestions, enhancement requests, feedback, recommendations or other information provided by You or any of Your Users relating to Loadster Cloud or the LP Technology.

2.3 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.

2.4 Passwords, Access. Your Service Administrator may designate and add Users and shall provide and assign unique passwords and user names to each authorized User. The Service Administrator shall ensure that multiple Users 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.

2.5 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.

2.6 Your Responsibilities. You will (a) be responsible for Your Users’ 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, LP Technology and Services, and notify LP promptly of any such unauthorized access or use, and (d) use Loadster Cloud, 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. 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 www.loadsterperformance.com/support. Technical Support may be modified by LP in its sole discretion, effective immediately upon notice to You.

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 Loadster Cloud Fuel; Subscriptions. Unless otherwise provided in the applicable Order Form, Loadster Cloud requires the purchase of Loadster Cloud Fuel. Loadster Cloud Fuel 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.

4.2 Fees; Invoices. You will pay all applicable fees. The applicable fees for Loadster Cloud 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 Loadster Cloud Fuel and Services purchased and not on actual usage. Should you purchase 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.

4.3 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.

4.4 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 LP Technology, Loadster Engine 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, the Loadster End User License Agreement (in the case of Loadster Engine and Loadster Workbench), and applicable laws and government regulations. You agree that LP shall not be liable to You nor to any third party for any suspension of Loadster Cloud pursuant to this Section 4.4. 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, Loadster Engine 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, LP Technology or Loadster Engine, 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, 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. LP will use commercially reasonable efforts to protect any of Your Data provided to LP by You in the course of using Loadster Cloud 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, Loadster Engine 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.

6. LIMITED WARRANTIES; INDEMNIFICATION; LIABILITY LIMITATIONS

6.1 Loadster Cloud Warranty. LP warrants that Loadster Cloud 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 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 any unused Loadster Cloud Fuel remaining in Your account 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. LP DOES NOT WARRANT THAT LOADSTER CLOUD 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 6.1 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.

6.2 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.

6.3 Disclaimer Of Warranties. EXCEPT AS STATED IN SECTIONS 6.1 AND 6.2, LOADSTER CLOUD, THE LP TECHNOLOGY AND ALL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE WARRANTIES STATED IN SECTIONS 6.1 AND 6.2 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 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. YOU ACKNOWLEDGE AND AGREE THAT LOADSTER WORKBENCH AND LOADSTER ENGINE ARE NOT SUBJECT TO ANY WARRANTIES UNDER THIS AGREEMENT AND, TO THE EXTENT EITHER IS SUBJECT TO ANY WARRANTIES, THESE WARRANTIES ARE EXCLUSIVELY SET FORTH IN THE LOADSTER END USER LICENSE AGREEMENT UNDER WITH EACH IS LICENSED.

6.4 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 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, LP TECHNOLOGY OR SERVICES, (B) ANY INTERRUPTION OF USE OF LOADSTER CLOUD, 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 6.1 AND 6.2, 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.

6.5 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, Loadster Engine, 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 Loadster Cloud Fuel 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 4.4 and a right to terminate this Agreement (or any Order Form) for cause if You are in breach of any other agreement with LP, such as the Loadster End User License Agreement. Upon any termination of the Agreement or an Order Form, (a) Your right to access and use Loadster Cloud 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 Loadster Workbench 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. 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 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 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, 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 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 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. LP reserves the right to provide some or all of Loadster Cloud (including but not limited to Technical Support) from locations, and/or through use of third party providers, located worldwide.

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.

Loadster End User License Agreement

The following End User License Agreement (the “Agreement”) governs Your use of the Software (as defined below) provided to You by Brickyard Technologies, Inc., dba Loadster Performance (“LP”).

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A WRITTEN AGREEMENT WITH LP 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.

This Agreement was last updated on September 1, 2013. It is effective between You and LP as of the date of You accepting this Agreement.

1. DEFINITIONS

“Authorized Use Limits” means the specific level of use at which You are authorized to execute or run the Software. This level may be measured by the individual named user (seat), server, license term (i.e. perpetual or limited duration), virtual user limits (i.e. limits on the number of simulated users authorized in any given load test) or other level of use as specified by LP at the time of Your order.

“Client” means those specific business organizations or divisions within Your organization that desire to use the Software. The number and types of Your Clients authorized to use the Software shall be specified by LP at the time of Your order.

“Documentation” means all online help files or written instruction manuals and other standard end user written materials regarding the Software provided by LP to you.

“License Term” means the time period that the Software is licensed to You, as specified by LP at the time of Your order.

“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 and for which use rights may be purchased from LP pursuant to Loadster Cloud’s Terms of Use. Loadster Cloud is separate from the Software and is not required for use of the Software, but Loadster Cloud may be used in combination with the Software.

“Software” means the particular LP proprietary software program(s) supplied by LP to You, including any Software updates and Documentation. Software may include the Loadster Workbench and/or Loadster Engine software products.

“Technical Support” or “Support” means the end user support for the Software provided by LP during the License Term, as defined in Section 3 below.

“Trial Version” means a version of the Software, so identified, to be used only to review, demonstrate and evaluate the Software. The Trial Version may have limited features and may cease operating after a predetermined amount of either time or use due to an internal mechanism within the Trial Version.

2. LICENSE GRANT; RESTRICTIONS; YOUR RESPONSIBILITIES

2.1 License Grant. Subject to full and timely payment of all amounts owed or due to LP under this Agreement or otherwise and all the other terms, conditions and limitations hereof, LP grants to You during the License Term the non-transferable, non-exclusive license (a) to install and use the Software, subject to Your Authorized Use Limits, solely for Your Client(s) own internal business purposes and in accordance with the Documentation; (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 Client(s) 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.

2.2 Restrictions. YOU MAY NOT USE THE SOFTWARE WITH ANY APPLICATION, IP ADDRESSES OR DOMAINS THAT YOU OUR YOUR CLIENT(S) DO NOT OWN, WHETHER SUCH USE IS TO LOAD TEST, SEND TRAFFIC OR OTHERWISE. The licenses granted to You in this Agreement are subject to the following additional restrictions: (i) Your use of the Software shall be limited to Your Authorized Use Limits and shall not be used either outside those Authorized Use Limits or on behalf of Clients other than those Clients for whom You have purchased use rights; (ii) You shall not license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise commercially exploit or make the Software available to any third party except as expressly provided for in Section 2.1 above; (iii) You shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Software, or access or use the Software in order to build a similar or competitive product or service; (iv) except as expressly stated in Section 2.1 above, no part of the Software 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; (v) 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 Software and any suggestions, enhancement requests, feedback, recommendations or other information provided by You or any of Your agents, contractors and outsourcers relating to the Software; and (vi) You shall not disclose any review of the Software, including but not limited to the results of any performance tests, to any third party without LP’s prior written approval.

2.3 Your Responsibilities. You shall use the Software only in accordance with the Documentation and applicable laws and government regulations, including without limitation that YOU SHALL NOT USE THE SOFTWARE WITH ANY APPLICATION, IP ADDRESSES OR DOMAINS THAT YOU OUR YOUR CLIENT(S) DO NOT OWN, WHETHER SUCH USE IS TO LOAD TEST, SEND TRAFFIC OR OTHERWISE. You shall not knowingly permit anyone to use the Software for purposes of deriving its source code or for purposes other than as authorized in this Agreement. You agree to use all reasonable efforts to ensure that persons employed by You or under Your direction and control abide by the terms and conditions of this Agreement. In the event You become aware that the Software is being used by such persons in a manner not authorized by this Agreement, You shall immediately notify LP in writing of such facts and You shall immediately use all reasonable efforts to have such unauthorized use of the Software immediately cease, and to recover any copies of the Software that were made in violation of this Agreement.

2.4 Trial Versions. Should LP provide You with a Trial Version, You may only use the Trial Version of the Software for the purpose of evaluating whether to purchase an ongoing license to the Software. This evaluation period is limited to the time period specified at the time You receive the Trial Version. If You are using the Trial Version of the Software free of charge, You are not entitled to Technical Support as provided for under this Agreement. If You wish to continue to use the Software after the evaluation period, you must obtain written permission from LP or its authorized reseller. IF YOU DO NOT OBTAIN WRITTEN PERMISSION WITHIN THE APPLICABLE EVALUATION PERIOD, THE SOFTWARE MAY AUTOMATICALLY CEASE OPERATION. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOU WILL NOT SUFFER ANY DAMAGE SHOULD THE SOFTWARE CEASE OPERATION.

3. TECHNICAL SUPPORT

Trial Versions of the Software do not qualify for any Technical Support. During the License 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 www.loadsterperformance.com/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.

4. FEES; PAYMENT

4.1 Fees; Invoices. Except for Trial Versions of the Software, Software designated by LP in writing to be provided free of charge or where LP agrees otherwise in a written document signed by both You and LP, prior to downloading or obtaining the Software, You will pay all applicable fees. If at the time of Your order, LP approves payment upon invoice, all amounts invoiced by LP 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, on payment terms shorter than those specified in this Agreement.

4.2 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 out at the time of Your order. To the extent You are exempt from sales or other taxes, You agree to provide LP, upon request, with the appropriate exemption certificate.

5. INTELLECTUAL PROPERTY RIGHTS

5.1 Intellectual Property Rights. LP and its licensors own all right, title and interest to the Software, Loadster Cloud and any modifications, ideas, or recommendations provided by You, together with all associated intellectual property rights. You assign to and agree that LP shall own and have the right to exploit and including in the Software any suggestions, enhancements requests, feedback, recommendations or other information provided by You related to the Software or Loadster Cloud. This Agreement does not convey or transfer any ownership in the Software or Loadster Cloud, or their associated intellectual property rights. Your license rights to the Software pursuant to this Agreement are strictly limited to the right to use in accordance with the terms of this Agreement. This Agreement provides You with no use rights to Loadster Cloud. Should You desire to purchase use of Loadster Cloud, please contact LP for assistance in doing so under LP’s Loadster Cloud Terms of Use.

5.2 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 Trial Version of Software and Software Provided Free of Charge are Provided “AS IS”. To the fullest extent permitted by law, Trial Versions of the Software and any Software 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 SOFTWARE IS BORNE BY YOU.

6.2 Limited Warranty for Software Provided For a Charge. For any Software provide for a charge, LP warrants, for a period of fifteen (15) days after the date that You first download the Software, that the Software will function and perform substantially in accordance with its Documentation. This limited warranty is conditioned upon (a) Your proper use of the Software; (b) the absence of any additions or modifications, or attempted additions or modifications, to the Software; (c) the absence of any component or system problems not caused by 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 the Software. LP DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL SATISFY YOUR REQUIREMENTS; WILL OPERATE WITHOUT INTERRUPTION; IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTIONS, ERRORS, OR OTHER PROGRAM LIMITATIONS. YOU FURTHER ACKNOWLEDGE THAT THERE IS NO GUARANTEE THAT THE SOFTWARE OR ANY LOAD TEST CONDUCTED USING THE SOFTWARE 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.

To be covered by the above limited warranty, during the fifteen (15) day warranty period, You must, in writing, inform LP of Your problem with the Software and request a refund. Your sole and exclusive remedy, and LP’s sole liability, for any breach of the limited warranty shall be, at LP’s discretion: (a) repair or replacement of the Software; or (b) provision of a workaround that will allow You to achieve substantially the same functionality with the Software as described in the Documentation; or (c) if the above remedies are impractical, a refund of the license fee You paid for the Software. Repaired, corrected, or replaced Software shall be covered by this limited warranty for the period remaining under the warranty that covered the original Software, or if longer, for fifteen (15) days after the date the repaired or replaced Software is available for download by You, or (b) the provision of the workaround.

6.3 Disclaimer Of Warranties. EXCEPT AS STATED IN SECTION 6.2, THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS. THE WARRANTY STATED IN SECTION 6.2 IS THE SOLE AND EXCLUSIVE WARRANTY 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 OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR YOUR PURPOSES. YOU ACKNOWLEDGE AND AGREE THAT LOADSTER CLOUD IS NOT SUBJECT TO ANY WARRANTIES UNDER THIS AGREEMENT AND, TO THE EXTENT LP PROVIDES ANY WARRANTIES FOR LOADSTER CLOUD, THESE WARRANTIES ARE EXCLUSIVELY SET FORTH IN THE LOADSTER TERMS OF USE UNDER WITH USE RIGHTS TO LOADSTER CLOUD ARE PURCHASED.

6.4 Limitation of Liability. YOU ACKNOWLEDGE AND AGREE THAT THERE IS POSSIBILITY OF COLLATERAL DAMAGE FROM ANY LOAD TESTING (INCLUDING LOAD TESTING USING THE 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 THE SOFTWARE OR ANY INTERRUPTION OF USE OF THE SOFTWARE, EVEN IF LP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL LP’S LIABILITY HEREUNDER EXCEED THE AMOUNT THAT YOU PAID TO LP UNDER THIS AGREEMENT FOR THE PARTICULAR SOFTWARE GIVING RISE TO THE LIABILITY.

6.5 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 use of the Software 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 License Term. The License Term is as specified in writing by LP at the time of Your order. If Your license is limited in time, the License Term shall commence upon the date set forth on the Order Form and shall continue for the period of time set forth in writing by LP at the time of Your order. Except as otherwise provided in writing by LP at the time of Your order, UPON THE EXPIRATION OF THE INITIAL LICENSE TERM, THE LICENSE TERM SHALL AUTOMATICALLY RENEW FOR SUCCESSIVE RENEWAL TERMS OF EQUAL LENGTH AS THE INITIAL LICENSE 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. You may elect not to renew by providing written notice to LP prior to the commencement of the Renewal Term.

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 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 a right to terminate this Agreement for cause if You are in breach of any other agreement with LP, such as the Loadster Cloud Terms of Use. Upon any termination of the Agreement, (a) You shall immediately discontinue use of the Software and destroy all copies of the Software in Your possession or control; and (b) if LP requests, You agree to promptly provide LP with written certification of the destruction. Your obligation to make a payment of any outstanding, unpaid fees shall survive termination of this Agreement. In addition, the following provisions shall survive any termination of this Agreement: Sections 5, 6, 7, 8, and 10.

8. PUBLICITY

LP may identify You on its customer lists and list You as a customer in its marketing materials, and reproduce Your company name, logo, trademark, trade name, service mark, or other commercial designations, solely in connection therewith. LP will not otherwise use Your name for any publicity or marketing purposes without Your prior written consent.

9. ASSIGNMENT

You may not assign this Agreement or the license granted hereunder in whole or in part without the prior written consent of LP, which consent may be granted or denied in LP’s sole discretion. Should You desire to assign this Agreement or the license granted hereunder, please request such transfer in writing, including in such request the name and full contact information for the proposed transferee, along with a signed statement from both You and the proposed transferee that (a) the Agreement will be transferred with the Software; (b) the proposed transferee fully accepts the terms and conditions of this Agreement, and (c) that all complete or partial copies of the Software including copies on data storage devices, are also transferred or destroyed. Any assignment made in conflict with this provision shall be void. This Agreement shall benefit and bind the permitted successors and assigns of the parties.

10. GENERAL PROVISIONS

10.1 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 at the time of Your order. LP may give notice to You by electronic mail to Your 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 or e-mail.

10.2 Audit and Verification. You agree to create, retain and provide to LP and its auditors accurate written records and other system information sufficient to provide auditable verification that Your use of all Software is in compliance with this Agreement, including without limitation, that Your use does not exceed the number of copies of the Software for which You have paid for licenses. Upon reasonable notice, LP may verify your compliance with the Agreement at all sites and for all environments in which You use the Software. Such verification will be conducted in a manner that minimizes disruption to Your business, and may be conducted on Your premises, during normal business hours. LP may use an independent auditor to assist with such verification, provided LP has a written confidentiality agreement in place with such auditor. LP will notify You in writing if any such verification indicates that You have used any Software in excess of Your purchased use rights or otherwise not in compliance with this Agreement. You agree to promptly pay directly to LP the charges that LP specifies in an invoice for (a) such excess use, (b) support for such excess use for the lesser of the duration of such excess use or two years, and (c) any additional charges and other liabilities determined as a result of such verification.

10.3 Export. You agree that U.S. export control laws and other applicable export and import laws govern Your use of the Software. 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 the Software in any manner that would violate applicable law, including but not limited to export control laws and regulations.

10.4 Force Majeure. Except for Your obligation to pay, 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.

10.5 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.

10.6 Integration; Modification. This Agreement together with any purchase order, represents the parties’ entire understanding relating to the subject matter herein, 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.

10.7 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.

10.8 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 the Software.

10.9 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.

10.10 US Government Restricted Rights Notice. This Section 10.10 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).

Website Terms and Conditions

Agreement between user and loadsterperformance.com

Welcome to loadsterperformance.com. The loadsterperformance.com website (the “Site”) is comprised of various web pages operated by Brickyard Technologies, Inc. dba Loadster Performance (“Loadster Performance”). This site, loadsterperformance.com, is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein (the “Terms”). Your use of loadsterperformance.com constitutes your agreement to all such Terms. Please read these terms carefully, and keep a copy of them for your reference.

The loadsterperformance.com website provides information about our load testing software, and allows you to download the free and paid versions of the software. Via this website, you may also purchase licenses to use the software, communicate with Loadster Performance and other entities,and sign up for load testing related services.

Privacy

Your use of loadsterperformance.com is subject to Loadster Performance’s Privacy Policy. Please review our Privacy Policy, which also governs the Site and informs users of our data collection practices.

Electronic Communications

Visiting loadsterperformance.com or sending emails to Loadster Performance constitutes electronic communications. You consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communications be in writing.

Your account

If you use this site and create an account and/or password, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. You may not assign or otherwise transfer your account to any other person or entity. You acknowledge that Loadster Performance is not responsible for third party access to your account that results from theft or misappropriation of your account. Loadster Performance and its associates reserve the right to refuse or cancel service, terminate accounts, or remove or edit content in our sole discretion.

Loadster Performance does not knowingly collect, either online or offline, personal information from persons under the age of thirteen. If you are under 18, you may use loadsterperformance.com only with permission of a parent or guardian.

Cancellation/Refund Policy

If you have purchased a license to the desktop software and are unsatisfied for any reason, a refund is available if we receive your request within the first 15 days of purchase. If you subscribe to a paid service and choose to cancel, we may (at our option) refund the unused portion of your subscription. Please contact us at info@loadsterperformance.com with any questions about the refund and cancellation policies.

Links to third party sites/Third party services

The site loadsterperformance.com may contain links to other websites (“Linked Sites”). The Linked Sites are not under the control of Loadster Performance and Loadster Performance is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. Loadster Performance is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Loadster Performance of the site or any association with its operators.

Certain services made available via loadsterperformance.com are delivered by third party sites and organizations. By using any product, service or functionality originating from the loadsterperformance.com domain, you hereby acknowledge and consent that Loadster Performance may share such information and data with any third party with whom Loadster Performance has a contractual relationship to provide the requested product, service or functionality on behalf of loadsterperformance.com users and customers.

No unlawful or prohibited use/Intellectual Property

You are granted a non-exclusive, non-transferable, revocable license to access and use loadsterperformance.com strictly in accordance with these terms of use. As a condition of your use of the Site, you warrant to Loadster Performance that you will not use the Site for any purpose that is unlawful or prohibited by these Terms. You may not use the Site in any manner which could damage, disable, overburden, or impair the Site or interfere with any other party’s use and enjoyment of the Site. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Site.

All content included as part of the Service, such as text, graphics, logos, images, as well as the compilation thereof, and any software used on the Site, is the property of Loadster Performance or its suppliers unless otherwise noted, and protected by copyright and other laws that protect intellectual property and proprietary rights. You agree to observe and abide by all copyright and other proprietary notices, legends or other restrictions contained in any such content and will not make any changes thereto.

You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part, found on the Site. Loadster Performance content is not for resale. Your use of the Site does not entitle you to make any unauthorized use of any protected content, and in particular you will not delete or alter any proprietary rights or attribution notices in any content. You will use protected content solely for your personal use, and will make no other use of the content without the express written permission of Loadster Performance and the copyright owner. You agree that you do not acquire any ownership rights in any protected content. We do not grant you any licenses, express or implied, to the intellectual property of Loadster Performance or our licensors except as expressly authorized by these Terms.

Use of communication services

The Site may contain blogs, chat areas, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, “Communication Services”), you agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service.

By way of example, and not as a limitation, you agree that when using a Communication Service, you will not: defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others; publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information; upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents; upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer; advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages; conduct or forward surveys, contests, pyramid schemes or chain letters; download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner; falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded, restrict or inhibit any other user from using and enjoying the Communication Services; violate any code of conduct or other guidelines which may be applicable for any particular Communication Service; harvest or otherwise collect information about others, including e-mail addresses, without their consent; violate any applicable laws or regulations.

Loadster Performance has no obligation to monitor the Communication Services. However, Loadster Performance reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. Loadster Performance reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever.

Loadster Performance reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Loadster Performance’s sole discretion.

Always use caution when giving out any personally identifying information about yourself or your children in any Communication Service. Loadster Performance does not control or endorse the content, messages or information found in any Communication Service and, therefore, Loadster Performance specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Managers and hosts are not necessarily authorized Loadster Performance spokespersons, and their views do not necessarily reflect those of Loadster Performance.

Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination. You are responsible for adhering to such limitations if you upload the materials.

Materials provided to loadsterperformance.com or posted on any Loadster Performance web page

Loadster Performance does not claim ownership of the materials you provide to loadsterperformance.com (including feedback and suggestions) or post, upload, input or submit to any Loadster Performance Site or our associated services (collectively “Submissions”). However, by posting, uploading, inputting, providing or submitting your Submission you are granting Loadster Performance, our affiliated companies and necessary sublicensees permission to use your Submission in connection with the operation of their Internet businesses including, without limitation, the rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; and to publish your name in connection with your Submission.

No compensation will be paid with respect to the use of your Submission, as provided herein. Loadster Performance is under no obligation to post or use any Submission you may provide and may remove any Submission at any time in Loadster Performance’s sole discretion.

By posting, uploading, inputting, providing or submitting your Submission you warrant and represent that you own or otherwise control all of the rights to your Submission as described in this section including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions.

Third Party Accounts

You may be able to connect your Loadster Performance account to third party accounts. By connecting your Loadster Performance account to your third party account, you acknowledge and agree that you are consenting to the continuous release of information about you to others (in accordance with your privacy settings on those third party sites). If you do not want information about you to be shared in this manner, do not use this feature.

International Users

The Service is controlled, operated and administered by Loadster Performance from our offices within the USA. If you access the Service from a location outside the USA, you are responsible for compliance with all local laws. You agree that you will not use the Loadster Performance Content accessed through loadsterperformance.com in any country or in any manner prohibited by any applicable laws, restrictions or regulations.

Indemnification

You agree to indemnify, defend and hold harmless Loadster Performance, its officers, directors, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of or inability to use the Site or services, any user postings made by you, your violation of any terms of this Agreement or your violation of any rights of a third party, or your violation of any applicable laws, rules or regulations. Loadster Performance reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Loadster Performance in asserting any available defenses.

Liability disclaimer

THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. BRICKYARD TECHNOLOGIES, INC. DBA LOADSTER PERFORMANCE AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SITE AT ANY TIME.

BRICKYARD TECHNOLOGIES, INC. DBA LOADSTER PERFORMANCE AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. BRICKYARD TECHNOLOGIES, INC. DBA LOADSTER PERFORMANCE AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BRICKYARD TECHNOLOGIES, INC. DBA LOADSTER PERFORMANCE AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITE, WITH THE DELAY OR INABILITY TO USE THE SITE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF BRICKYARD TECHNOLOGIES, INC. DBA LOADSTER PERFORMANCE OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE.

Termination/access restriction

Loadster Performance reserves the right, in its sole discretion, to terminate your access to the Site and the related services or any portion thereof at any time, without notice. To the maximum extent permitted by law, this agreement is governed by the laws of the State of Arizona and you hereby consent to the exclusive jurisdiction and venue of courts in Arizona in all disputes arising out of or relating to the use of the Site. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this section.

You agree that no joint venture, partnership, employment, or agency relationship exists between you and Loadster Performance as a result of this agreement or use of the Site. Loadster Performance’s performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of Loadster Performance’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by Loadster Performance with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect.

Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and Loadster Performance with respect to the Site and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Loadster Performance with respect to the Site. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent an d subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that this agreement and all related documents be written in English.

Changes to Terms

Loadster Performance reserves the right, in its sole discretion, to change the Terms under which loadsterperformance.com is offered. The most current version of the Terms will supersede all previous versions. Loadster Performance encourages you to periodically review the Terms to stay informed of our updates.

Contact Us

Loadster Performance welcomes your questions or comments regarding the Terms:

Brickyard Technologies, Inc. dba Loadster Performance

2200 E. Williams Field Road

Suite 200

Gilbert, AZ 85295

USA

info@loadsterperformance.com

+1 (480) 442-9460

Effective as of April 15, 2012

Privacy Policy

This privacy policy discloses the privacy practices for loadsterperformance.com. This privacy policy applies solely to information collected by this web site. It will notify you of the following:

  • What personally identifiable information is collected from you through the web site, how it is used and with whom it may be shared.
  • What choices are available to you regarding the use of your data.
  • The security procedures in place to protect the misuse of your information.
  • How you can correct any inaccuracies in the information.

Information Collection, Use, and Sharing

We are the sole owners of the information collected on this site. We only have access to/collect information that you voluntarily give us via email or other direct contact from you. We will not sell or rent this information to anyone.

We will use your information to communicate with you. We will not share your information with any third party outside of our organization, other than as necessary to maintain communication and provide services.

Unless you ask us not to, we may contact you via email and/or social media in the future to tell you about specials, new products or services, or changes to this privacy policy.

Your Access to and Control Over Information

You may opt out of any future contacts from us at any time. You can do the following at any time by contacting us via the email address or phone number given on our website:

  • See what data we have about you, if any.
  • Change/correct any data we have about you.
  • Have us delete any data we have about you.
  • Express any concern you have about our use of your data.

Security

We take precautions to protect your information.

Wherever we collect sensitive information (such as credit card data), that information is encrypted and transmitted to us in a secure way. You can verify this by looking for a closed lock icon at the bottom of your web browser, or looking for “https” at the beginning of the address of the web page.

Updates

Our Privacy Policy may change from time to time and all updates will be posted on this page.

If you have questions or feel that we are not abiding by this privacy policy, please contact us immediately via telephone at +1 (480) 442-9460 or via email at info@loadsterperformance.com.