In using LoadStorm you are deemed to have read and agreed to the following terms and conditions as defined in the below User Agreement (“Agreement”):

The following terminology applies to this Agreement: “Client”, “You” and “Your” refers to you, the person accessing this website and accepting the Company’s terms and conditions, your employees, consultants, contractors and agents, and third parties with which You transact business.. “The Company”, “Ourselves”, “Our”, “We” and “Us”, refers to our Company, CustomerCentrix LLC. “Party” or “Parties” refers to both the Client and Compayn, or either the Client or Company.

All terms refer to the offer, acceptance and consideration of payment necessary to undertake the process of our assistance to the Client in the most appropriate manner, whether by formal meetings of a fixed duration, or any other means, for the express purpose of meeting the Client’s needs in respect of provision of the Company’s stated services/products, in accordance with and subject to, the laws of New Mexico, United States. “Purchased Services” means Services that You or Your Affiliates purchase from Company, as distinguished from those provided pursuant to a free trial account. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features. The terms of this Agreement may change at any time. Changes will be posted online, and your continued use of LoadStorm after the change will constitute your acceptance of the changes.
Company agrees to always treat your account details, test configurations and test results with confidentiality and never to release this information to third parties, unless required by law to do so.

Company agrees to provide Our support for the Purchased Services to You at no additional charge based on the level of support included with your plan, or consulting services if purchased separately. We will use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours notice via the Purchased Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Mountain Time), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service and/or hosting provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.

Company makes no guarantees regarding the availability of LoadStorm functionality, which includes recording, scripting, load engines, scheduling or test results. The fitness for any particular purpose or accuracy of data may be affected by many technical factors in web performance engineering (e.g. latency, servers, scripts, networks), and the Company therefore cannot assume responsibility for Client’s particular test results. The information provided by Company is provided on an “as is” basis. To the fullest extent permitted by law, this Company excludes all representations and warranties relating to this website and its contents or which is or may be provided by any affiliates or any other third party, including in relation to any inaccuracies or omissions in this website and/or the Company’s literature; and excludes all liability for damages arising out of or in connection with your use of this website. This includes, without limitation, direct loss, loss of business or profits (whether or not the loss of such profits was foreseeable, arose in the normal course of things or you have advised this Company of the possibility of such potential loss), damage caused to your computer, computer software, systems and programs and the data thereon or any other direct or indirect, consequential and incidental damages. At Our sole discretion, We may provide a refund for Purchased Services, but under no circumstances will Company assume liability above the amount paid by Client to Us.

Purchased Services are usually paid for with credit card in advance. If We agree to invoice You for the Purchased Services, You shall pay all fees specified in the invoice within 30 days of date of invoice, unless otherwise stated in the invoice. Invoices will be delivered by email. Except as otherwise specified herein, (i) fees are based on services purchased and not actual usage, and (ii) payment obligations are noncancelable and fees paid are non-refundable., charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes based on Our income, property and employees.

Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the software and services related to LoadStorm and Purchased Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

Client agrees to only load test systems that client controls lawfully or has permission to test. Client will not use LoadStorm as a weapon in any way, such as for denial of service attacks. Client agrees to keep its LoadStorm account password confidential, and only allow trusted people within its own organization access to its LoadStorm account. Client agrees to accept full responsibility for any damages incurred as a result of load tests it initiates.
You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Manual and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Your users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.

We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Purchased Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You”), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to  Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Purchased Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Purchased Services so that they no longer infringe or misappropriate, (ii) obtain a license for Your continued use of the Purchased Services in accordance with this Agreement, or (iii) terminate Your Purchased Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such Purchased Services after the effective date of termination.

You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us”), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.

This mutual indemnification states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in the two paragraphs above.

NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $500,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS FOR PURCHASED SERVICES.
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

The laws of New Mexico govern these terms and conditions. By accessing LoadStorm you consent to these terms and conditions and to the exclusive jurisdiction of the New Mexico courts in all disputes arising out of such access. If any of these terms are deemed invalid or unenforceable for any reason (including, but not limited to the exclusions and limitations set out above), then the invalid or unenforceable provision will be severed from these terms and the remaining terms will continue to apply. Failure of the Company to enforce any of the provisions set out in this Agreement shall not be construed as waiver of such provisions and shall not affect the validity of these terms and conditions or the right thereafter to enforce each and every provision.

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