These Terms of Service include the terms and conditions on which you may use the CloudPuncher load testing service (the "Service") offered by MidnightCoders, Inc. ("Licensor") through the website located at http://www.cloudpuncher.com ("Site"). By using the Service, you are agreeing to be bound by and comply with these Terms of Service.
1. Access to Service. Subject to these Terms of Service, Licensor will provide you access to and a license to use the Service solely for your internal business purposes. You have no right to provide access to the Service to others or to copy, transfer, sublicense, or otherwise distribute the Service or its components to others.
2. Your Responsibilities.
3. Fees. Licensor may from time to time offer limited trial access to the Service, on terms and subject to conditions specified in connection with such an offer. For all other access to and use of the Service, you will pay Licensor the applicable fee specified on this Site. Whether you are accessing and using the Service on a trial basis or for purchased volume, these Terms of Service apply.
4. Support. Licensor will maintain an e-mail address and web page through which you may report problems and send questions about the Service. Licensor personnel will monitor e-mail and web requests for support on a regular (but not continuous) basis, and will use reasonable efforts to answer questions about the use and operation of the Service. Prioritysupport, which includes phone support, is available at no additional charge to Subscription customers.
5. Ownership of the Service. Licensor retains ownership, including all copyright, patent, trademark, and trade secret rights in and to the Service and all software, content, and other components made available through or otherwise used to provide the Service. Licensor reserves any rights or licenses not expressly granted to you under these Terms of Service.
6. Limited License to Copy. You may copy for internal use only any reports generated through use of the Service, and any other content accessed through the Service that indicates it may be copied by Licensor's customers.
7. Reports. As part of your use of the Service, you may receive reports assessing the performance of your website during testing. The reports will be generated from sources believed to be reliable. However, Licensor does not guarantee the accuracy, adequacy, or completeness of the reports and is not responsible for any errors or omissions.
8. Limited Warranty; Sole Remedy. Licensor warrants that the Service will substantially conform to the description of the Service on this Site. If the Service does not conform to this warranty, Licensor will refund to you the amounts paid for the nonconforming use of the Service. Any refund must be requested within 30 days after you first encounter any nonconformity. The refund is your sole remedy in case of breach of the foregoing warranty.
9. Disclaimer. EXCEPT AS STATED IN SECTION 8 ABOVE, LICENSOR MAKES NO WARRANTY REGARDING, AND ASSUMES NO LIABILITY FOR, THE SECURITY AND INTEGRITY OF ANY DATA OR INFORMATION YOU STORE OR TRANSMIT VIA THE SERVICE OR THE INTERNET, INCLUDING ANY DATA OR INFORMATION STORED OR TRANSMITTED BY ANY COMPUTER DESIGNATED AS SECURE. YOU ARE RESPONSIBLE FOR IMMEDIATELY REPORTING TO LICENSOR ANY ISSUE THAT COULD COMPROMISE THE SECURITY OR INTEGRITY OF ANY USER OR SYSTEM UTILIZING THIS SERVICE.
10. Indemnity by You. You will indemnify, defend, and hold harmless Licensor and its employees against any and all liabilities, losses, costs, and expenses, including attorney fees at trial and on appeal, arising out of your use of the Service or any breach of these Terms of Service by you, including, without limitation, claims by third parties arising from your misuse of the Service.
11. Limitation of Liability. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SERVICE. LICENSOR WILL NOT BE LIABLE FOR ANY CLAIMS ATTRIBUTABLE TO ANY ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE INFORMATION OR MATERIAL CONTAINED IN THE SERVICE. IN NO EVENT WILL LICENSOR BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST PROFITS, LOST SAVINGS, LOSS OF BUSINESS OPPORTUNITY, OR BUSINESS INTERRUPTION, EVEN IF LICENSOR WAS INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE. LICENSOR'S MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICE, REGARDLESS OF LEGAL THEORY (WHETHER IN CONTRACT, TORT OR OTHERWISE), WILL NOT EXCEED THE FEES PAID BY YOU FOR THE USE OF THE SERVICE THAT IS THE BASIS FOR LIABILITY.
12. Prohibited Uses. You will neither use nor permit others to use the Service (a) to direct volume to any website that you do not own or operate, such as a website of a competitor, (b) for any unlawful, invasive, infringing, defamatory, fraudulent, or obscene purpose, (c) to send spam or other types of unsolicited communications of any kind, regardless of the content or nature of the messages, (c) to send any virus, worm, Trojan horse, or harmful code or attachment, or (d) to alter, steal, corrupt, disable, destroy, trespass, or violate any security or encryption of any computer file, database, website, or network. If you or your personnel violate any of the foregoing prohibitions, Licensor may immediately suspend or terminate your use of the Service without refund. Licensor will be the sole arbiter as to what constitutes a violation of this provision, provided that any determination of a violation of this provision shall be made reasonably in good faith based on applicable law, regulation and the commonly accepted practices of the Internet community.
13. Reporting Abuses. Any party seeking to report an abuse or violation of the Licensor Terms of Service may contact Licensor by sending email to report@cloudpuncher.com.
14. Governing Law. These Terms of Service are governed by Texas law without regard to conflicts of law principles.
15. Severability. If any provision of these Terms of Service are held invalid or unenforceable in any jurisdiction, then, to the fullest extent permitted by law, (a) the affected provision will remain in full force and effect in all other jurisdictions and (b) all other provisions will remain in full force and effect.
16. Venue. The state courts in Dallas County, Texas, and the United States District Court for the Northern District of Texas will have exclusive jurisdiction over the parties with respect to any dispute or controversy between them arising under or in connection with these Terms of Service or your use of the Service, and each party consents to such jurisdiction. The parties agree that venue in such forums for purposes of litigation is proper, and the parties waive any claim that such forums are inconvenient or that a more convenient forum can be found.
17. Attorney Fees. In any litigation or arbitration proceeding between the parties, the prevailing party will be entitled to recover reasonable attorney fees and expenses, including attorney fees and expenses on appeal or petition for review. The prevailing party means the party that prevails (whether affirmatively or by means of a successful defense) with respect to the claims having the greatest value or importance as reasonably determined by the court or arbitrator.
18. Amendment. Licensor may supplement or amend these Terms of Service from time to time by posting the supplemented or amended terms on this Site. The supplemented or amended terms will apply to each use of the Service following the posting. Your continued use of the Service will constitute your agreement to the supplemented or amended terms.
19. Entire Agreement. These Terms of Service represent the entire agreement between you and Licensor.
