Services Agreement

General terms and conditions for using the LoadImpact service.

Last updated January 21, 2020.



1. GENERAL

1.1 This Agreement shall apply to all offers and agreements under which LoadImpact provides Services to the Customer. No deviations from the Agreement shall be valid unless explicitly agreed in writing.


1.2 This LoadImpact Services Agreement, together with the Description of Services and, as applicable, the Data Processing Agreement found at https://loadimpact.com/data-processing-agreement/ constitute the “Agreement”.


1.3 By purchasing or signing up for a subscription or free trial to the Services provided by LoadImpact, Customer accept that Customer is bound by the terms and conditions of this Agreement.


2. DEFINITIONS

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“Agreement”means (i) this LoadImpact Services Agreement, (ii) the Description of Services, and, as applicable, (iii) the Data Processing Agreement found at https://loadimpact.com/data-processing-agreement/.
“Confidential Information”means all information of any nature (whether oral, written, electronic or any other form) disclosed by either Party before or after the effective date of the Agreement relating to the disclosing Party, to its business, technology, partners, affiliates, customers and/or suppliers and irrespective of whether such information is retained in the form in which it was provided to the other Party or is contained or reflected in notes or other documents prepared by the disclosing Party.
“Customer”means the legal entity that is purchasing or subscribing to the Services.
“Customer Data”means data uploaded by the Customer in test scripts and configurations, test runs and generated as a result of any of the aforementioned.
“Date of Delivery”means the date Customer is provided with access to the Services.
“Description of Services”means any written or online order provided by LoadImpact, and manually or electronically accepted by the Customer, which sets out the details regarding any Services Customer is granted access to by LoadImpact.
“Intellectual Property Rights”means all present and future rights, title and interest whatsoever (whether legal or beneficial and whether registered or unregistered), in the copyright and in any design rights, trademarks, patents, rights or protections or similar to copyright (including all moral rights), topography rights, software programs, applications, database rights, know-how, trade names, trade secrets, inventions and other intangible proprietary information.
“LoadImpact”means Load Impact AB, 556560-4773.
“Parties”means the Customer and LoadImpact jointly.
“Party”means the Customer or LoadImpact separately.
“Services”means any materials or services provided by LoadImpact to Customer, collectively.
“Trademarks”means trademarks, names, logos and service marks.

3. LOADIMPACT OBLIGATIONS

3.1 LoadImpact offers the Services on a fixed agreed term, a subscription basis (i.e. monthly, quarterly or annually) and on a trial or other promotional basis. LoadImpact agrees to provide the Services during the term agreed between the Parties. The Services will be provided in accordance with the Description of Services, which may be found at https://loadimpact.com/pricing/, unless otherwise agreed between the Parties.


4. CUSTOMER OBLIGATIONS

4.1 Customer agrees to comply with all provisions of the Agreement, as well as any laws, regulations and governmental decisions applicable to the use of the Services. Customer agrees to keep Customer account password confidential, and only allow trusted people within Customer organization access to Customer account. Customer agrees to retain no more than one free LoadImpact account, which will grant Customer the right to one concurrent test unless otherwise agreed.


4.2 Customer agrees to keep all account and billing information up to date and accurate, and to submit payments when due.


5. USE OF THE SERVICES

5.1 LoadImpact will not be held responsible for any unauthorized use of the Services. Customer is responsible for the use of the Services by any Customer employee, any person authorized by Customer to use the Services, any person to whom Customer has given access to the Services, and any person who gains access to the Services as a result of Customer’s failure to use reasonable security precautions, even if such use was not authorized by Customer.


6. FEES

6.1 Due Date


6.1.1 All payments shall be due and payable upon Customer’s receipt of the invoice and within 30 days unless otherwise agreed. All payments due to LoadImpact shall be paid in U.S. Dollars, via electronic/wire transfer or credit card, to an account designated by LoadImpact unless otherwise agreed between the Parties.


6.2 Late Fees


6.2.1 Customer will pay a late fee of 1.5% per month or the highest rate allowed under law, whichever is lower, on any overdue amounts. Customer also agrees to pay LoadImpact all reasonable costs and expenses of collection, including attorneys' fees.


6.3 Promotional offers and trials


6.3.1 From time to time, LoadImpact may offer promotional pricing for the Services, including free trials and free accounts. LoadImpact reserves the right to change, amend, or end a promotion at any time and without prior notification. Free trials, free accounts, and promotional offers are limited to one per Customer.


6.4 Fee Increases


6.4.1 For Services provided on a monthly basis (including but not limited to Services provided until further notice in accordance with section 7.2.1), LoadImpact may increase fees at any time by notifying the Customer. The fee increase will take effect from and including the month immediately following LoadImpact's notification of the fee increase. For Services that are provided for a term longer than one month, LoadImpact may increase the fees upon the expiration of the current term. Any such pricing increase will take effect from and including the term immediately following the notification of the fee increase and will not exceed 7% of the pricing for the Services purchased in the immediately prior subscription term, unless the pricing was designated in the relevant Agreement as being promotional or one-time.


6.4.2 In addition to the above, LoadImpact may increase the fees at any time if the Customer requests any modification to the Services, including but not limited to increased capacity or additional concurrent tests.


6.4.3 Any fee increases shall be notified to the Customer in writing 30 days prior to the fee increase taking effect. If the Customer does not accept the fee increase, the Customer shall notify LoadImpact in writing within the aforementioned 30-day period, in which case the Agreement will expire on the day preceding the price increase taking effect unless otherwise agreed between the Parties.


6.5 Taxes


6.5.1 The Customer will pay all sales, use, and other taxes imposed by any applicable laws and regulations as a result of the payments under this Agreement, unless Customer is able to provide sufficient evidence of Customer’s exemption from such tax.


7. TERM AND RENEWAL

7.1 Custom subscriptions and fixed term agreements


7.1.1 If the Services are purchased on a subscription basis with a fixed term, this Agreement will commence on the Date of Delivery and run until and including the date agreed between the Customer and LoadImpact in this LoadImpact Services Agreement. Upon expiration of the initial term, the Agreement shall automatically renew for additional periods equal to the initial term, unless either Party provides the other Party with a written notice of non-renewal at least 30 days before the end of the relevant term. Notwithstanding the above, the Customer and LoadImpact may agree that the Agreement shall commence on the Date of Delivery and expire upon expiration of the initial term without automatic renewal, in which case the Agreement shall expire automatically without any prior notice.


7.2 Self-serve online subscriptions


7.2.1 If the Services are purchased on a subscription basis with an initial term of a month, quarter or year (whichever is selected by the Customer at the time of the purchase), this Agreement will commence on the Date of Delivery and until and including the initial month, quarter or year expires (whichever is applicable). The Agreement is renewed automatically on a monthly, quarterly or annual basis (whichever is applicable) unless the Customer cancels the Services in the Customer's LoadImpact account no later than the day prior to the renewal date. Upon the Customer's cancellation, the Agreement shall expire on the last day of the current term.


7.3 Trial and promotional offers


7.3.1 If the Customer has subscribed to a trial or promotional offer for the Services, this Agreement will commence on the Date of Delivery and run until and including the day the trial or promotion expires.


8. PROCESSING OF PERSONAL DATA

8.1 To the extent LoadImpact will process personal data on behalf of the Customer, the Customer shall be the personal data controller and LoadImpact shall be the personal data processor. Processing of personal data may only take place in accordance with applicable law, in accordance with Customer’s instructions and as further set out in the Data Processing Agreement.


8.2 In the event that the terms and conditions of this LoadImpact Services Agreement or the Description of Services is in conflict with the Data Processing Agreement, the provisions in the Data Processing Agreement shall prevail in regards to processing of personal data.


9. LIMITATIONS ON LIABILITY

9.1 Customer agrees that LoadImpact’s entire liability, and Customer’s exclusive remedy, with respect to any Services provided under the Agreement and any breach of the Agreement is solely limited to damages corresponding to the portion of the fees equal to the Customer’s use of such Services.


9.2 LoadImpact shall not be liable for any direct, indirect, incidental, special or consequential damages or loss of profit resulting from the use or inability to use any of its Services or for the cost of procurement of substitute services.


10. TERMINATION

10.1 General


10.1.1 Upon expiration of the Agreement, Customer will no longer be enabled to use the Services to perform any concurrent tests. However, Customer will be granted continuous access to the Services in order to access its data during the retention time agreed between the Parties. During any access to the Services after the expiration of the Agreement, the Customer is obliged to comply with all terms and conditions of the Agreement applicable to such access and any terms and conditions intended to survive shall survive the expiration of the Agreement, including but not limited to section 9, 10, 11, 13, 14, 18, 19 and 22.


10.2 Termination for Breach


10.2.1 If either Party is in material breach of any provision of this Agreement and if such breach is not cured within thirty (30) days after receiving written notice from the other Party specifying such breach in reasonable detail, the non-breaching Party shall have the right to terminate this Agreement by giving written notice thereof to the Party in breach. Such termination for breach shall be effective immediately on receipt of notice. For the avoidance of doubt, LoadImpact is not obliged to provide Customer access to the Customer’s LoadImpact account during the agreed retention period if the Agreement is terminated due to Customer’s breach of the Agreement.


10.3 Termination for Convenience


10.3.1 This Agreement may be terminated by either Party upon thirty (30) days advance written notice.


10.4 Early Termination Fee


10.4.1 If Customer terminates the Agreement for convenience, or if LoadImpact terminates the Agreement due to Customer’s breach of the Agreement, Customer must pay an early termination fee equal to the fees owed for the remaining portion of the terms of the Agreement. If Customer has paid all fees up-front, no additional termination fee will be payable. In addition to the early termination fee, LoadImpact shall be entitled to all other remedies available under the Agreement and applicable law. For the avoidance of doubt, LoadImpact shall under no circumstances be obliged to make any refunds if the Agreement is terminated due to Customer’s breach of the Agreement or by Customer for convenience.


11. SUSPENSION OF SERVICES

11.1 If Customer fails to make payments when due or otherwise is in breach of this Agreement or if LoadImpact in its sole discretion reasonably decides that there is a significant risk for damages to property or person, LoadImpact may suspend the performance of Services. LoadImpact shall have no liability whatsoever to the Customer for any costs or damages that may result from such suspension. In the event that any Services are suspended due to another reason than the Customer’s breach of the Agreement, Customer’s sole remedy is a prolongation of the term of the Agreement (and provision of the Services) with a period equal to the time the Services were suspended.


12. PUBLICITY

12.1 Neither Party is allowed to use the other Party’s logos, trademarks or any other Intellectual Property Rights for other purposes than to fulfil its obligations under the Agreement. LoadImpact may however use the Customer’s name and logo in promotional material, provided that such use is in accordance with good practice.


13. CONFIDENTIAL INFORMATION

13.1 Both Parties shall maintain strict confidence and shall not disclose to any third Party any Confidential Information which comes into that Party’s possession and shall not use Confidential Information without prior written permission by the other Party. This provision shall not, however, apply to information or material, which is, or becomes, public knowledge by means other than by breach by a Party to this clause and to the extent Confidential Information must be disclosed due to applicable law, stock exchange regulations or by order of a court or a government agency or authority, provided that the disclosing Party promptly gives notice to the other Party of such obligation of disclosure. Both Parties shall ensure that requisite confidentiality agreements are entered into with the respective Party’s employees and representatives to bind all such personnel to adherence with the abovementioned confidentiality undertaking.


14. INDEMNIFICATION

14.1 Customer agrees to be responsible for any failure by any of Customer’s representatives to comply with any of the provisions of this Agreement. Customer agrees to indemnify LoadImpact and its representatives and hold them fully harmless from and against any loss, cost, damage, expense or liability suffered or incurred by any of them arising as a result of or in connection with any failure by Customer or any of Customer’s representatives to comply with any provision of this Agreement.


15. FORCE MAJEURE

15.1 Neither Party shall be held responsible for any delay or failure in performance of any part of the Agreement to the extent such delay or failure is caused by fire, flood, explosion, war, embargo, government requirement, civil or military authority, riot, strikes or labour disputes, acts of terrorism, natural disaster, or other similar causes beyond its control and without the fault or negligence of the delayed or non-performing Party.


16. ASSIGNMENT

16.1 LoadImpact may freely assign this Agreement, in whole or in part. Customer may not assign or delegate its rights or obligations pursuant to this Agreement without LoadImpact’s prior written consent, which shall not be unreasonably withheld. Any attempt by Customer to assign this Agreement in violation of this provision will be void and of no effect.


17. SOLICITATION

17.1 Neither Party shall without the prior written consent of the other Party, induce to employ, whether as an employee, agent, partner or consultant, any employee the other Party, save as a result of a non-targeted bona fide recruitment advertisement of the Party.


18. TRADEMARKS

18.1 Trademarks displayed on any of LoadImpact’s websites are registered and unregistered Trademarks of LoadImpact and, as applicable, LoadImpact’s licensors. Nothing in this Agreement, the Services or contained on any of LoadImpact’s websites should be construed as a transfer or granting any license or right to use any Trademark without the prior written permission of LoadImpact.


18.2 Customer shall at all times refrain from removing any Trademarks and other Intellectual Property Rights from the Services, documentation and other material provided by LoadImpact.


19. INTELLECTUAL PROPERTY

19.1 Any Intellectual Property Rights developed, created, or invented by LoadImpact, or any of its representatives, individually, cooperatively or collectively during the term of the Agreement shall belong to LoadImpact. Nothing in this Agreement shall be construed as a transfer, license or any other usage right for the Customer except to the extent necessary for the Customer’s use of the Services in accordance with this Agreement.


19.1 All Customer Data, shall remain the property of the Customer. Customer hereby warrants that Customer has obtained all necessary consents, permits, approvals and decisions in order to upload and provide Customer Data to the Services and, as applicable, to LoadImpact. By entering into this Agreement, the Customer grants LoadImpact a non-exclusive, royalty-free and limited right, by itself or by appointing a third party, to use the Customer Data and Customer’s account details for statistical purposes and to develop the Services. Any personal data included in the data provided by the Customer shall be processed in accordance with section 8 above and, as applicable, the Data Processing Agreement.


20. NOTICES

20.1 All notices shall be in writing and shall be delivered by e-mail, certified or registered mail, postage prepaid, return receipt requested, or by a recognized overnight delivery service. Any notices to LoadImpact shall be sent by post to: Load Impact AB, Att: CEO, Götgatan 14, 118 46 Stockholm, Sweden or sent by e-mail to: sales@loadimpact.com. Notices to the Customer shall be sent to the address apparent from this LoadImpact Services Agreement or registered by Customer at Customer’s LoadImpact account. Any changes to the addresses shall be made in writing according to the requirements of this section. The notice shall be deemed received when the recipient has confirmed the receipt unless otherwise agreed or apparent from this Agreement.


21. MODIFICATION

21.1 LoadImpact reserves the right to revise the terms of this Agreement at any time with 30 days’ prior notice. Any such revision will be binding and effective upon the Customer if the Customer fails to object to the revised terms within 30 days of receipt of notification. LoadImpact encourages the Customer to review the latest version of the Agreement, which will be available on the LoadImpact web site, https://loadimpact.com/services-agreement/.


22. GOVERNING LAW

22.1 Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”).


22.2 The Rules for Expedited Arbitrations shall apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules shall apply. In the latter case, the SCC shall also decide whether the Arbitral Tribunal shall be composed of one or three arbitrators. The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral process shall be English.


22.3 This contract shall be governed by the substantive law of Sweden.