Software As a Service Agreement

Software as a Service Agreement

IMPORTANT – YOU SHOULD CAREFULLY READ THESE TERMS OF SERVICE (THE “AGREEMENT”) BEFORE USING OR ACCESSING THE PFLB LOAD TESTING PLATFORM SERVICE (THE “SERVICE”) PROVIDED BY PFLB, INC. (“PFLB”), A DELAWARE CORPORATION, AVAILABLE THROUGH PFLB’S WEBSITE LOCATED AT https://pflb.us. BY ACCESSING THE SERVICE FOR PERSONAL USE, THIS AGREEMENT APPLIES TO AND BINDS YOU PERSONALLY. IF YOU ARE ACCESSING THE SERVICE AS PART OF YOUR WORK FOR AN ORGANIZATION, THIS AGREEMENT APPLIES TO AND BINDS SUCH ORGANIZATION AND THE PERSONS ACCESSING THE SERVICE ON BEHALF OF THE ORGANIZATION. AS USED IN THIS AGREEMENT, “CUSTOMER” WILL REFER TO THE PERSON, ORGANIZATION, AND THE PERSONS ACCESSING THE SERVICE ON BEHALF OF THE ORGANIZATION. BY ACCESSING OR USING THE SERVICE, YOU, AND THE ORGANIZATION, AS APPLICABLE, AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, THEN YOU SHALL NOT ACCESS OR USE THE SERVICE.

“Affiliate” means a natural person or entity that directly or indirectly controls or is controlled by or is under common control with a Party.
“Documentation” means the standard written and published materials regarding the Subscription Services accessible via https://pflb.us/docs/en/, as may be updated occasionally.
“Feedback” means any suggestion, enhancement, request, recommendation, correction, or other feedback provided by Customer or its authorized users relating to the use of the Subscription Services.
“Intellectual Property Rights” means any patent, patent applications, trade secret, trademark, copyright, industrial design, or any other intellectual property right registered or unregistered in any country worldwide and all related goodwill.
“Malicious Code” means any viruses, worms, spyware, poison pills, time bombs, backdoors, drop dead dates, or other destructive or disabling devices that are intended to harm and that are within the Subscription Services upon its delivery to Customer.
“Open Source Software” means the software with its source code made available pursuant to a license by which, at a minimum, the copyright holder provides anyone the rights to study, change, and/or distribute the software to anyone and for any purpose.
“Order” means the document by which the Subscription Services and, if applicable, Professional Services (including a Statement of Work and Quotes) are acquired by the Customer. The Order and any subsequent Orders, as the same may be amended from time to time, shall be governed by the terms and conditions of this Agreement and are incorporated into this Agreement by reference.
“Organization Data” means any proprietary, confidential, and/or personal data regarding or related to Customer or its Affiliates that PFLB may be exposed to throughout the performance of this Agreement or that may be generated or processed in connection with Customer’s or its Affiliate’s use of the Subscription Services.
“Professional Services” means any integration, configuration, training, consulting, or customized services offered by PFLB or its designated subcontractors related to the Subscription Services, as more fully described in a Statement of Work.
“Software” means PFLB’s proprietary software applications in object code form.
“Statement of Work” means a document describing Professional Services to be provided by PFLB to Customer. For purposes of this Agreement, a Statement of Work shall constitute an “Order.”
“Subscription Services” means the products and services purchased by Customer pursuant to this Agreement on a subscription basis as identified on each Order, which includes, but is not limited to, the Software, Support and Maintenance, the Documentation, or any part thereof.
“Subscription Term” means the period identified on each Order which PFLB has committed to provide, and Customer has committed to pay for, the Subscription Services.

In consideration of the payment of all fees set forth in the Order, and subject to Customer’s compliance with Customer’s undertakings herein contained, PFLB hereby grants during each Subscription Term, and Customer hereby accepts on behalf of each of its authorized users of the Subscription Services, solely for its internal use, a non-exclusive, non-transferable, non-sublicensable, revocable, non-assignable
(except as otherwise provided in Section 14(c) herein) limited license to access the Subscription Services (collectively the “License”).

The technical support and maintenance services for the Subscription Services (“Support and Maintenance”) are included during the Subscription Term as part of the fees paid by Customer to PFLB for the Subscription Services, and the Support and Maintenance will be performed in accordance with the service levels as set forth in the SaaS Listing attached to this Agreement as Exhibit A. PFLB may update its terms of Support and Maintenance, and the SaaS Listing, from time to time, so long as the Subscription Services functionality and service levels are not materially diminished.

Scope. This Agreement confers no title or ownership and is not a sale of any rights in the Subscription Services and Professional Services. All rights not expressly granted to Customer are reserved solely to PFLB and/or its licensors. Nothing herein should be construed as granting Customer, by implication, estoppel, or otherwise, a license relating to the Subscription Services and Professional Services other than as expressly stated in this Agreement.
Restrictions. Pursuant to the License granted hereunder, Customer’s authorized users may only use the Subscription Services within Customer’s organization. Customer agrees that Customer will not: (i) reverse engineer, disassemble, decompile or attempt to derive the architecture or design, or any source code contained in the Subscription Services; (ii) modify the Subscription Services; (iii) otherwise translate or use the Subscription Services except as specifically allowed by this Agreement, or allow any person or entity (whether with or without consideration) the right to do any of the foregoing; (iv) sublicense, transfer, and/or assign (except as otherwise expressly provided herein) the Subscription Services to any third party, whether with or without consideration; (v) render any services to third parties using the Subscription Services; (vi) remove or in any manner alter any product identification, proprietary, trademark, copyright
or other notices contained in the Subscription Services; (vii) allow any third parties to use the Subscription Services (except as otherwise expressly provided herein); or (viii) interfere with, burden or disrupt the Subscription Service functionality. Customer may not make any copies of the Subscription Services or any portions thereof.
CUSTOMER MAY NOT USE THE SUBSCRIPTION SERVICES FOR, OR IN CONJUNCTION WITH, ANY ACTIVITY THAT CONSTITUTES, OR ENCOURAGES CONDUCT THAT WOULD CONSTITUTE, A CRIMINAL OFFENSE, GIVE RISE TO CIVIL LIABILITY OR OTHERWISE VIOLATE ANY LAW APPLICABLE IN THE JURISDICTIONS WHERE CUSTOMER ENGAGES IN ACTIVITY OR BUSINESS, INCLUDING ANY APPLICABLE LAWS AND REGULATIONS GOVERNING PRIVACY, DEFAMATION, UNLAWFUL DISCRIMINATION, MASS EMAIL AND SPAM, CONSUMER PROTECTION, UNFAIR COMPETITION, AND FALSE ADVERTISING. CUSTOMER MAY NOT USE THE SUBSCRIPTION SERVICE FOR, OR IN CONNECTION WITH, ANY ACTIVITY THAT MAY BE DEEMED, OR ENCOURAGE ACTIVITY THAT MAY BE DEEMED THREATENING, HARASSING, MISLEADING, DECEPTIVE, ABUSIVE, VULGAR, OBSCENE OR PORNOGRAPHIC. PFLB MAY EMPLOY TECHNOLOGICAL MEASURES TO DETECT AND PREVENT FRAUDULENT OR ABUSIVE USE OF THE SUBSCRIPTION SERVICES. PFLB MAY TERMINATE THE AGREEMENT WITHOUT PRIOR NOTICE AND AT ITS SOLE DISCRETION, IF PFLB DEEMS CUSTOMER’S USE OF THE SUBSCRIPTION SERVICES TO BE FRAUDULENT OR ABUSIVE.
Affiliates. Notwithstanding anything to the contrary herein, the rights granted to Customer hereunder may be exercised by Customer’s Affiliates, provided that Customer shall remain responsible at all times for such Affiliates’ adherence to all applicable terms and conditions of this Agreement and shall be primarily liable for any breach of this Agreement by such Affiliate.

Subscription Services, Professional Services, and Derivative Works. PFLB (or its licensors, as applicable) will retain all title to and ownership of the Subscription Services, Professional Services, and all related concepts, technical know-how, and all modifications, customizations, revisions, bug fixes, enhancements, improvements, and derivative works, but excluding any scripts and APIs developed by PFLB specifically for Customer (collectively, the “Derivative Works”) thereof developed by PFLB or anyone else, including Customer, including all Intellectual Property Rights and, except for the expressed limited license granted hereunder, Customer shall have no rights in or claims with respect thereto. Customer shall have all right, title, and ownership in and to any scripts and APIs developed by PFLB for Customer as part of the Professional Services. To the extent it shall be determined that Customer has any right in connection with the Subscription Services, Professional Services, or Derivative Works other than the limited specific license hereunder, Customer hereby irrevocably (i) assigns to PFLB, whenever and in perpetuity, any right, title and interest, whether now existing or later arising, that Customer may have in or to the Subscription Services, Professional Services, Derivative Works, and/or related Intellectual Property Rights; and (ii) agrees to take any lawful action that PFLB reasonably requests to vest or protect our right, title and interest therein (at Customer’s sole cost).
Confidential Information.

General. Each Party agrees that all inventions, know-how, engineering, business, technical and financial information it obtains (“Receiving Party”) from the disclosing Party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Notwithstanding the foregoing marking requirements, the Subscription Services, training materials, technical information and other code or data of any type provided by PFLB (or its agents), the pricing offered by PFLB to Customer, and this Agreement’s terms and conditions are PFLB Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information.
Exclusions. The Receiving Party’s nondisclosure obligation will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees or contractors of the Receiving Party who had no access to such information.
Use and Disclosure Restrictions. Neither Party will use the other Party’s Confidential Information except as necessary for the performance of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and contractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee and contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. Each Party will use all reasonable efforts to maintain the confidentiality of all such Confidential Information in its possession or control, but, in no event, less than the efforts that such Party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either Party from disclosing Confidential Information of the other Party: (i) pursuant to the order or requirement of a court, administrative agency or tribunal or other governmental body, provided that the Party required to make such a disclosure gives reasonable written notice to the other Party to contest such order or requirement, unless it is not legally prevented to provide such notice to the other Party; and
(ii) on a confidential basis to its legal or financial advisors. In addition, each Party may disclose the terms and conditions of this Agreement as required under applicable securities laws, but such Party will use all reasonable efforts to obtain confidential treatment to the maximum extent possible for the terms and conditions of this Agreement.

To provide Customer with the Subscription Services, to improve and customize Customer’s experience with the Subscription Services, to provide Customer with Support and Maintenance, to handle Customer inquiries, and to send Customer related recommendations and suggestions; and
To collect fees, conduct administrative activities necessary to maintain and provide the Subscription Services, enforce this Agreement, to take any action in any case of dispute or legal proceeding of any kind involving Customer, with respect to the Agreement, and to prevent fraud, misappropriation, infringements and other illegal activities and misuse of the Subscription Services.

Fees; Payment Terms. Fees and payment terms are specified in the applicable Order. Except as otherwise expressly specified in the Order: (i) all recurring payment obligations start from the receipt of the Order; (ii) when the Order is placed directly with PFLB, fees must be paid within thirty (30) days after the invoice date; (iii) upon the expiration of each Subscription Term, the fees for the Subscription Services will be PFLB’s then-current commercial list price for such Subscription Services; and (iv) interest accrues on past due balances at the highest rate allowed by applicable law. Failure to make timely payments is a material breach of the Agreement and PFLB will be entitled to suspend any or all of its performance obligations hereunder and to modify the payment terms, including requiring full payment before PFLB performs any obligations in this Agreement. Customer acknowledges and agrees that it will reimburse PFLB for any expenses incurred, including interest and reasonable attorney fees, in collecting amounts due to PFLB hereunder that are not under good faith dispute by the Customer.
Taxes. All Fees are exclusive of all sales, value added taxes, goods, and services taxes, withholding taxes, customs duties, or similar taxes, duties, and charges (collectively, “Taxes”). Such Taxes shall be incremental to any Fees and shall be payable by Customer in accordance with applicable law. Customer shall pay to PFLB an amount equal to any such Taxes actually paid, or required to be collected and paid, by PFLB with respect to the transactions contemplated in this Agreement, and under any subsequent invoice, unless Customer provides PFLB with a fully-completed certificate of exemption from any Taxes required to be collected and paid by PFLB, which such acceptance of the certificate of exemption will be subject to PFLB’s reasonable discretion.

Limited Warranty. PFLB represents and warrants to Customer during any Subscription Term that (i) PFLB is the sole owner of the Subscription Services and has all the necessary rights thereto to license the Subscription Services to Customer as contemplated hereunder; (ii) the Subscription Services shall materially conform to the applicable Documentation; and (iii) the Subscription Services will not contain Malicious Code.
Limitations on Limited Warranty. THE FOREGOING LIMITED WARRANTY DOES NOT APPLY TO ANY DEFECTS, DAMAGES, FAILURES OR MALFUNCTIONS TO ALL OR ANY PART OF THE SUBSCRIPTION SERVICES RESULTING FROM: (I) USE OF THE SUBSCRIPTION SERVICES OTHER THAN AS SPECIFIED IN THE APPLICABLE DOCUMENTATION; (II) ANY ALTERATIONS, MODIFICATIONS OR ADAPTATIONS OF THE SUBSCRIPTION SERVICES PERFORMED BY ANYONE OTHER THAN PFLB OR UPON PFLB’s WRITTEN AUTHORIZATION; OR (III) ANY UNAUTHORIZED COMBINATION OR INTERFACING OF THE SUBSCRIPTION SERVICES WITH OTHER HARDWARE OR SOFTWARE. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL PFLB BE IN BREACH OF THE WARRANTY SET FORTH IN SECTION 12(a)(iii), IF, AT THE TIME ANY MALICIOUS CODE WAS INTRODUCED INTO THE SUBSCRIPTION SERVICES, PFLB EMPLOYED COMMERCIALLY REASONABLE MEASURES, CONSISTENT WITH THE STANDARDS OF ITS INDUSTRY, TO DETECT SUCH MALICIOUS CODE IN ORDER TO PREVENT ITS INTRODUCTION INTO THE SUBSCRIPTION SERVICES. Customer’s sole and
exclusive remedy for breach of the warranties set forth in Section 12(a) shall be that PFLB, at PFLB’s sole discretion, will either: (i) repair, replace or provide a reasonable workaround for the defective and/or non- conforming portion of the Subscription Services within thirty (30) days after receiving written notice of the breach of the warranty that describes in detail the specific nature of the defect and/or non-conformity: or
(ii) refund all amounts paid by Customer for such Subscription Services (after deducting amounts paid for actual use of the Subscription Services by Customer). To claim the benefit of this warranty, Customer must give PFLB written notice of any breach of the warranty (as aforesaid) within thirty (30) days of the occurrence of the alleged breach.
Professional Services Warranty. All employees of PFLB performing Professional Services hereunder will have the requisite skill and training to perform PFLB’s obligations in a good and workmanlike manner consistent with professional standards in PFLB’s industry. Customer’s sole and exclusive remedy for any breach of the foregoing Professional Services warranty shall be, at PFLB’s option, re- performance of the non-conforming Professional Services one time, or a refund of all prepaid fees paid by Customer for the applicable non-conforming Professional Services. PFLB’s warranty obligations under this Section 12(c) are conditioned upon Customer providing PFLB with a detailed written notice of any claimed breach of the warranty within thirty (30) days of occurrence of the alleged breach.
Open Source Software. The Subscription Services may include Open Source Software, a list of which is provided at https://pflb.us/third-party-licences/. Open Source Software is governed solely by the applicable open source licensing terms, if any, and is provided “AS IS.” PFLB provides no warranty specifically related to any Open Source Software or any applicable Open Source Software licensing terms. The foregoing language is not intended to limit PFLB’s warranty obligation for the Subscription Services set forth in Section 12(a).
Customer Warranties. Customer represents and warrants that its (and its users’) access to and collection, use, relocation, storage, disclosure and disposition of Organization Data shall comply with all applicable laws, including without limitation all privacy and data security laws.
Mutual Representations and Warranties. Each Party represents and warrants to the other that: (i) it is duly organized, validly existing and in good standing under the applicable laws of the state of its incorporation or formation; (ii) it has the right and full power and authority to enter into this Agreement; (iii) it will comply, at all times, with all applicable laws, including (without limitation) any such applicable laws that may govern the disposal of the mobile devices; and (iv) when on the other Party’s physical premises, it will comply with the other Party’s communicated policies in relation to its conduct at such premises, to the extent such policies do not conflict with the terms of this Agreement.
Exclusions. PFLB, ITS AFFILIATES, AND ITS THIRD PARTY PRODUCT LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES STATUTORY OR OTHERWISE, EXPRESS OR IMPLIED, ORAL OR IN WRITING, WITH RESPECT TO THE SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES, AND THIRD PARTY PRODUCTS EXCEPT AS SET FORTH IN THIS SECTION 12, INCLUDING NON-INFRINGEMENT, CONDITION, QUALITY, THEFT OR DESTRUCTION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, ANY NEGLIGENCE, AND MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE.
Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR BREACHES OF CONFIDENTIAL INFORMATION, A PARTY’S INDEMNIFICATION OBLIGATIONS, AND CLAIMS BASED ON A PARTY’S WILLFUL MISCONDUCT, NEITHER PARTY’S CUMULATIVE LIABILITY TO THE OTHER PARTY FOR ALL CLAIMS IN CONNECTION WITH THIS AGREEMENT SHALL EXCEED THE AMOUNT PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO ANY SUCH CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT, (I.E. THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT). EXCEPT FOR BREACHES OF CONFIDENTIAL INFORMATION, A PARTY’S INDEMNIFICATION OBLIGATION, AND CLAIMS BASED ON A PARTY’S WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY, OR PFLB’s SUPPLIERS OR LICENSORS, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, MULTIPLE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, OR BUSINESS INTERRUPTION), LOSS OF DATA OR USE, ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE SUBSCRIPTION SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, UNDER WHICH SUCH DAMAGES ARE SOUGHT.
Indemnification. PFLB agrees to defend or settle, at its expense, Customer and its directors, officers, employees, independent contractors, and/or Affiliates (collectively, the “Indemnified Party”) from and against any third party claims alleging that the Indemnified Party’s use of the Subscription Services infringes and/or misappropriates any (i) issued patent, (ii) registered trademark, (iii) registered copyright,
(iv) trade secret, and/or (v) other intellectual property right. In connection with the foregoing defense, PFLB shall indemnify the Indemnified Party against all damages finally awarded against Customer in a final judgment or settlement of any of the foregoing claims that are specifically attributable to such suit or action. The Indemnified Party shall give PFLB prompt written notice of any such third-party claim; provided however, that the Indemnified Party’s failure to do so shall not reduce or diminish the Indemnifying Party’s obligations hereunder except to the extent the Indemnifying Party has been adversely affected or prejudiced by such failure. PFLB shall have no obligation under this Section 12(i) as to any claim, unless PFLB will have sole control of its defense or settlement of any third party claim hereunder, provided however, that PFLB shall not, without the Indemnified Party’s prior written consent, settle any claim in a manner that admits liability on the part of the Indemnified Party. The Indemnified Party shall reasonably cooperate with PFLB (at PFLB’s expense) in the defense as PFLB may reasonably request (it being understood that nothing herein shall preclude the Indemnified Party from consulting with its own counsel at its own expense). If Customer is, or PFLB believes it may become, prohibited from continued use of the Subscription Services by reason of an actual or anticipated claim of infringement, PFLB shall, at its option and expense, (i) obtain for Customer the right to continue using the Subscription Services, (ii) replace or modify the Subscription Services so that they are no longer subject to such claim, but performs the same functions in an equivalent manner, and (iii) if neither of the foregoing options are commercially practicable, terminate this Agreement and/or applicable Orders and refund to Customer a prorated portion of any pre-paid fees paid by Customer as of the date of termination for the Subscription Services subject to the claim, in which case Customer will cease use of the Subscription Services and return to PFLB the Subscription Services subject to such claim. The indemnification set forth in this Section 12(i) does not apply to the extent of Customer’s negligence, abuse or misapplication of the Subscription Services; use of the Subscription Services other than as specified in the applicable Documentation; any alterations, modifications or adaptations of the Subscription Services performed by anyone other than PFLB; any unauthorized combination or interfacing of the Subscription Services with other hardware or software; or other causes beyond the reasonable control of PFLB. THIS SECTION 12 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.

Collection of personal information. When Customer registers for a PFLB account, they do so by providing an email address and/or authorizing us to use their Google account. Both ways create a user, with email as Customer’s primary identifier. Other information such as Customer’s name, company name or affiliation, email address and location are optional to Customer’s discretion. For paid accounts, PFLB may collect additional personal information, such as credit card number and billing address, required to process the payment transaction. PFLB does not know Cusomer’s full credit card number, as this resides with PFLB payment gateway providers. PFLB may automatically receive and record information on its systems logs from Customer’s browser, including IP address, cookies, and the pages Customer requests.
Use of personal information. PFLB will never sell, rent, or otherwise share Customer personal information with other people or non-affiliated companies except to provide products or services Customer has requested when we have Customer permission.
Cookies. An HTTP cookie (also called web cookie, Internet cookie, browser cookie, or simply cookie) is a small piece of data sent from a website and stored on the user’s computer by the user’s web browser while the user is browsing. Cookies were designed to be a reliable mechanism for websites to remember stateful information. Customer can configure their browser to accept all cookies, reject all cookies, or notify Customer when a cookie is set. If Customer rejects all cookies or specifically rejects cookies set by PFLB, Customer may not be able to take full advantage of the features of PFLB products that require Customer to be signed in to your account or otherwise identify yourself.

When Customer are signing up or logging in using their Google account Customer grant PFLB time-limited access to the statistical information stored in those accounts, such as Google Analytics.
PFLB uses that information to create a profile for the load test and no other reason.
Under no circumstances will PFLB products share that information with any third party.
By using PFLB Customer agree that they are the rightful owners of the account they used to log in, and Customer has permission to conduct a load test on the websites they access through those accounts.
By no means is PFLB to be responsible for any damages in case Customer is running a test on a third-party website that they do not control or own.
Customer can always revoke access from the apps they granted it, including PFLB in respective accounts. It might result in limited functionality of PFLB and an inability to log on.

Agreement Term. The term of this Agreement shall begin on the Effective Date and continue until terminated as provided in this Section 13.
Subscription Term(s). Each Order will terminate at the end of the Subscription Term identified therein, unless earlier terminated as provided in this Section 13. The Subscription Term shall be automatically renewed for additional periods of the same duration as the initial Subscription Term, unless either party requests termination at least sixty (60) days prior to the end of the then-current term. For any renewal of a Subscription Term, PFLB reserves the right to increase the fees charged for Subscription Services that were charged in the prior, expiring Subscription Term (such increase will not take into account any transaction incentives included on a prior order).
Termination for Convenience. Either party may terminate this Agreement, and/or any Order, for convenience; provided, however, that Customer shall not be entitled to any refund of any prepaid fees and any unpaid fees for any committed Subscription Term shall become immediately due and payable.
Termination for Cause. Either Party may terminate this Agreement immediately if the other Party materially breaches or otherwise fails to comply with any material provision of this Agreement and such breach or failure is not cured within thirty (30) days after written notice of such breach or failure. Either Party will have the right to terminate this Agreement and all Orders effective immediately if: (i) a petition of bankruptcy is granted against the other Party; (ii) the other Party makes an assignment for the benefit of creditors; (iii) the other Party admits to being unable to meet its obligations as they come due; or (iv) a petition of bankruptcy is filed by or against the other Party and if such petition is not dismissed by
the bankruptcy court within 60 days after its filing. A Party’s intent to terminate this Agreement and all Orders under this Section 13(d) will be made by a written notice to the other Party.
Effect of Termination. If an Order still in effect at the time of expiration of this Agreement, then the terms and conditions contained in this Agreement and the relevant Order (including all Licenses granted by PFLB thereunder) shall continue to govern the outstanding Order until the end of the applicable Subscription Term for such Order. However, if the Agreement is terminated prior to its natural expiration, then all outstanding Orders (and all Licenses granted by PFLB thereunder) shall immediately terminate as of the Agreement termination date, unless otherwise agreed by the Parties in writing. Customer shall immediately return to PFLB any Subscription Services in Customer’s possession. Within thirty (30) days following the termination of this Agreement for any reason, each Party shall return or destroy, as requested by the other Party in writing, any Confidential Information of the other Party. Each Party agrees to certify, in writing, to the other compliance with the foregoing undertakings upon a Party’s request. Termination shall be without prejudice to the rights and remedies of either Party that may have accrued prior to such termination. For the avoidance of doubt, and except in the case of breach of this Agreement by PFLB, Customer shall not be entitled to a refund of any prepaid fees upon termination or expiration of the Agreement, and PFLB will not release Customer from its obligations to pay PFLB all fees that have accrued under this Agreement prior to its termination.
Survival. Any provision of this Agreement that expressly, by implication or necessity, contemplates performance or observance after the termination or expiration of this Agreement will survive termination or expiration of the Agreement and will continue in full force and effect, including any outstanding payment obligations.

This Agreement and any claim, cause of action or dispute arising out of, or related thereto, shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of Customer’s country of origin or where Customer uses the Subscription Services from, without giving effect to any conflict of law principles, which would result in the application of the laws of a jurisdiction other than the State of Delaware. Any dispute, claim or controversy arising out of, connected with, or relating to this Agreement, the Subscription Services, or any use related thereto, will be submitted to the sole and exclusive jurisdiction of the competent court located in the State of Delaware. The 1980 United Nations Convention on Contracts for the International Sale of Goods, any state’s enactment of the Uniform Computer Information Transactions Act, and the United Nations Convention on the Limitation Period in the International Sale of Goods, and any subsequent revisions thereto, do not apply to this Agreement.
Neither Party shall disclose the existence of this Agreement, its terms, or conditions, the occurrence of discussions under this Agreement, or the business relationship considered by the Parties hereunder, unless agreed in writing by the other Party. Neither Party shall issue publicity or general marketing communications concerning the other Party without the other Party’s prior written approval.
Neither Party may assign this Agreement, in whole or in part without the express written consent of the other Party, except for an assignment carried out as part of a merger, restructuring, or reorganization, or as a sale or transfer of all or substantially all of a Party’s assets. This Agreement inures to the benefit of, and is binding upon, the Parties and their respective heirs, legal representatives, permitted successors and permitted assigns.
Except for the obligation to pay monies due and owing neither Party shall be liable to the other Party for any delay or failure in the performance of its obligations under this Agreement or the addendums while in effect or otherwise if such delay or failure arises from any cause or causes beyond the control of such Party including, without limitation, labor shortages or disputes, strikes, other labor or industrial disturbances, delays in transportation, acts of God, floods, lightning, fire, epidemic, shortages of materials, rationing, utility or communication failures, earthquakes, casualty, war, acts of the public enemy, an act of civil or military authority, sabotage, explosives, riots, insurrections, embargoes, blockades, actions, restrictions, regulations or orders of any government, agency or subdivision thereof, or failure of suppliers.
Except as otherwise expressly provided in this Agreement, all notices or demands required or permitted pursuant to this Agreement shall be in writing and shall be sent (i) by courier or in person with signed receipt, (ii) by nationally recognized overnight delivery service, prepaid, with signature required, or (iii) by facsimile if promptly confirmed by copy sent pursuant to any of the foregoing methods, and in each case shall be sent to the other Party at its address set forth above or to such other addresses as either Party may designate from time to time by notice to the other Party in accordance with this Section 14(e). All notices, demands, and other communications hereunder may be given by any other means (including electronic mail), but will not be deemed to have been duly given unless and until it is actually received by the intended recipient. Notice given by electronic mail will be deemed to have been given when sent so long as no electronic notice is delivered to the sending party indicating that the electronic mail could not be delivered.
Failure of either Party to enforce a right under this Agreement shall not act as a waiver of that right or prevent a subsequent exercise of the same or any other right under this Agreement.
If any of the terms of this Agreement is or becomes or is declared to be invalid or void by any court of competent jurisdiction, such term or terms shall be null and void and shall be deemed severed from this Agreement, and all the remaining terms of this Agreement shall remain in full force and effect.
No modification, amendment, addition to or waiver of any rights, obligations, or defaults shall be effective unless in writing and signed by both Parties hereto.
This Agreement is the complete and exclusive agreement between the Parties hereto in connection with the subject matter hereof and supersedes any other proposal, representation, or other communication by or on behalf of either Party. No provision of any purchase order or any other form employed by either Party will supersede, contradict, vary, or modify the terms and conditions of this Agreement, and any such document issued by a Party hereto relating to this Agreement will be for administrative purposes only and have no legal effect. In the event of possible conflict or inconsistency between the terms contained in an executed Order or this Agreement, the conflict will be resolved in that order, but only for the specific Subscription Services described in the applicable Order.
The Parties acknowledge that money damages may not be an adequate remedy in the event of actual or threatened breach of the obligations and/or undertakings hereunder. Therefore, in addition to any other remedies available hereunder, by law or otherwise, either Party will be entitled to seek and obtain injunctive relief and/or any other appropriate decree of specific performance or any other appropriate equitable relief.
The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other Party’s prior written consent.
Customer, on behalf of itself and its Affiliates, agrees to comply fully with all applicable laws, statutes, regulations, rules, ordinances, codes, and standards relating to any export controls and economic sanctions laws of the United States or abroad. Customer acknowledges that the Subscription Services are of United States origin and is subject to the Export Administration Regulations (the “EAR”) administered by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”), and the laws and regulations governing economic sanctions and embargoes administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”). Accordingly, any use, transshipment, or diversion of the Subscription Services contrary to applicable export control laws or sanctions laws is prohibited. Customer warrants and covenants that: (1) Customer and its Affiliates will not export, re-export, re-sell, provide access to, or otherwise transfer the Subscription Services or related technology with knowledge that a violation of the U.S. law, the EAR, or the terms of any order, license, license exception, or other authorization issued under the EAR has occurred, is about to occur, or is intended to occur in connection with the item; and (2) Customer and its Affiliates will not export, re-export, re-sell, provide access to, or otherwise transfer the Subscription Services into any country or region subject to comprehensive economic sanctions (i.e., currently Cuba, Iran, North Korea, Syria, and the Crimea Region of Ukraine). Customer further represents that: (a) Customer and its Affiliates are not, and are not acting on behalf of, (i) any natural person or entity who is a citizen, national, or resident of, or who is controlled by, the government of any country to which the United States has prohibited export, reexport, or transfer of the Subscription Services or related technology, or (ii) any natural person or entity listed on OFAC’s list of Specifically Designated Nationals and Blocked Persons or the Consolidated Sanctions List, or BIS’s Denied Persons List, Entity List, or Unverified List; and (b) Customer and its Affiliates will not permit the Subscription Services to be used for any purposes prohibited by law, including but not limited to any prohibited development, design, manufacture, or production of missiles or nuclear, chemical, or biological weapons. Customer shall exercise diligent efforts to ensure its and its Affiliates’ compliance with this Section 14(l).

SAAS Listing

This document provides standards and features that apply to the PFLB Software as a Service (the “Service”) provided to the Customer by PFLB, Inc. (“PFLB”) and defines the parameters for the Service that pertain to the following:

The standards and features that apply to the Service, and related terms and conditions, may be updated from time to time by publication on PFLB’s website.

The following is an explanation of the Authorized Use Limitation metrics that may be used in PFLB’s order form:

“Combined Concurrency” means total maximum concurrency of Virtual Users across all running Tests or Variable Units across all capabilities of the platform.
“Parallel Run” means the number of Tests running at the same time.
“Request” means the number of API calls made via API Monitoring.
“Rows” means the number of lines of test data generated.
“Test” means the execution of one or multiple scripts resulting in the issuing of requests to a target environment.
“Transactions” means requests sent to a virtual service.
“Variable Unit” means a normalized usage metric across all platform capabilities (e.g., Tests, Mock Services, Test Data, API Monitoring).
“Variable Unit Hours” means the maximum Variable Units used by platform capabilities, rounded up to the nearest complete hour.
“Virtual User” means a simulation of a single user interacting with a set of APIs or web applications.
“Virtual User Hours” means, per Test, the maximum number of users simulated at somepoint of the test multiplied by the duration of the Test, rounded up to complete hours.
“Concurrent Variable Units” or “CVUs” normalize the Customer’s usage across all platform capabilities as follows:

Feature	Metric	Concurrent Variable Units	Variable Unit Hours
Performance Test	1 Virtual User	1	1
API Monitoring / API Functional Test	1,000 API calls (per 24 hour period)	5 (resets every24 hours	5
Test Data	Per Test, Per Mock Service and Transaction	+ 50% *	+ 50%*

For Example:

If the Customer runs a Performance Test with 5,000 Virtual Users (5,000 Variable Units) and uses Test Data with that Performance test, the charge for Test Data is 2,500 Variable Unit Hours for a total charge of 7,500.

Term Subscriptions. Customer may subscribe for a term with set Authorized Use Limitation and pricing as set forth in an applicable order form. Any use in excess of the Authorized Use Limitation shall be invoiced by PFLB for the overage and at the contract rate set forth in such order form. Any overage will be included in the Authorized Use Limitation for the remainder of the Subscription Term. There are no refunds for unused capacity.

Versions: PFLB will provision the Customer with the latest version of the Service that is generally available. PFLB may, from time to time, modify the Service and add, change, or delete features of the Service, without notice to the Customer. Customer’s continued use of the Service after any such changes to the Service constitutes acceptance of such changes. PFLB will make reasonable efforts to provide information to the Customer regarding material changes to the Service.

PFLB commits to the Service Level Availability (“SLA”) as indicated in the table below for the Service during the Subscription Term of the Service. In the event that the SLA committed decreases below the “Threshold for Service Availability Default” as set forth below, Customer may be entitled to take action as outlined herein. PFLB reserves the right to revise the SLA set forth below upon providing thirty (30) days advanced written notice to the Customer. Please note that SLA commitments are not offered for free plans of the Service.

Threshold for “Service Availability Default – Minor”	Threshold for “Service Availability Default – Major”
99.8%	98.5%

PFLB measures SLA targets as described below:

SLA Exclusions: The SLA does not apply to faults originating from the use of any open-source libraries included by Customer. SLA measurement does not include planned outage time periods.

Planned outage time periods are defined as downtime of the solution availability for periodic and required maintenance events where PFLB provides notice to Customer up to 72 hours prior to the planned maintenance window.

PFLB reserves the right to make reasonable changes to this measurement procedure.

Usage of the Service is limited based on the terms set out in the agreement. If this limit is exceeded, PFLB will notify Customer so Customer may reduce its usage. In the event Customer exceeds the Usage Limit, PFLB may suspend, or throttle down, the Service until Customer is in compliance.
The Customer will not (a) use the Service 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, (b) use the Service to store or transmit computer instructions that self-replicate without manual intervention, such as viruses, worms or Trojan horses, (c) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, (d) attempt to gain unauthorized access to the Service or its related systems or networks, (e) permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit, or (f) use the Service to cause tests to be executed against endpoints not owned by the customer.

Customer and confirmed by PFLB that the Service has been unavailable below the major default threshold, measured on a monthly basis during three (3) consecutive months, then the

Customer has the right to terminate their subscription to the Service without incurring any additional charges or termination fees. The waiver by PFLB of further fees shall be Customer’s sole and exclusive remedy for termination due to failure to adhere to Service Level Availability and PFLB shall have no further liability to the Customer.

PFLB may, at its sole discretion, suspend service without refund if (1) Customer interferes with or disrupts the integrity of SaaS or the data contained therein, or (2) uses SaaS in order to cause harm such as overload or create multiple agents for the purpose of disrupting SaaS or third-party operations.

All Customers of the Service offering shall have their data backed up on a daily basis. Data loss is limited to less than 26 hours in the event of a primary data center disaster. For the PFLB on premise components PFLB is not responsible for data backup.

The Service uses Multi-Region Replication as its primary Disaster Recovery strategy. Utilizing a high availability architecture for all tiers, including the database, PFLB also provides a standby site in an alternate region, thus providing failover capabilities for disaster recovery.

Recovery Time Objective (RTO)	Recovery Point Objective (RPO)
24 hours	26 hours

“Recovery Time Objective” or “RTO” is defined as the duration of time within which the Service must be restored after a major interruption or incident.

“Recovery Point Objective” or “RPO” is defined as the maximum period in which data might be lost from the Service due to a major interruption or incident.

Unless stated in another agreement, support and maintenance includes the following support:

PFLB Blog and Knowledge Base are community sites that, among other things, allow users to network, work together, share thoughts, and offer suggestions on how PFLB can do more to improve your experience using the Service.

The order form or transaction document identifies the type of Maintenance included as part of the PFLB SaaS Subscription, the duration of such Maintenance (the “Maintenance Term”), and the applicable fees for SaaS Maintenance of the Available Functionality.

Direct access to PFLB Support and the ability to open and manage support Incidents via website, email, and/or other technologies made available by PFLB in accordance with your support plan.
Production environment support: Support Hours for your support plan.
CRITICAL ISSUES MUST BE REPORTED/OPENED VIA THE PREFERRED COMMUNICATION METHOD SPECIFIED BY PFLB.
Non-production environment support during normal support team coverage hours.
Access to PFLB Blog (https://pflb.us/blog/) and PFLB Knowledge Base (https://guide.pflb.us/), as well as https://pflb.us for access to PFLB Communities, FAQs, samples, webcast recordings and demos, usage tips, technical updates as such, are made available by PFLB.

Service Level Objectives
Severity	Initial Response Time
1 – Catastrophic	30 Minutes
2 – Severe	30 Minutes
3 – Non-Critical	4 Hours
4 – Minor	8 Hours
5 – Information Request	8 Hours
6 – Feature Request	1 Business Day

**Response Time – The time for a support engineer to reply to the customer when a case is first opened.

Severity Level Definitions
Severity	Definition	Expected Resolution
1 – Catastrophic	Causing downtime or preventing the complete system from functioning	Subscription Service availability is restored.
2 – Severe	Causes downtime of significant functionality or significantly affects the major portion of the system’s capacity	A satisfactory workaround is provided, a patch is provided, and a fix is incorporated into future releases.
3 – Non-Critical	Effects non-critical functionality or causes downtime of a non-critical part of the system capacity	A satisfactory workaround is provided, a patch is provided, and a fix is incorporated into future releases.
4 – Minor	Minor problem that does not impact the service	A satisfactory workaround is provided, a patch is provided, and a fix is incorporated into future releases.
5 – Information Request	Routine Questions, general guidance, or configuration inquiries	The answer to the question is provided by Support through an open case
6 – Feature Request	Request for a new feature or enhancement to the product	The feature is incorporated into future releases: Developer’s Site update

You may be required to upgrade to third-party-supported applications and operating systems as specified by PFLB in the Documentation, as applicable, in order to continue receiving SaaS Maintenance from PFLB under this Policy.
If you decide to implement Client Technologies, you will be responsible for the successful installation and implementation of such third-party technologies within the recommended environments specified in the Documentation, as applicable.
You will utilize telephone, PFLB Support Online, or other site or notification mechanisms, as PFLB may designate from time to time, to notify PFLB of system availability issues or request other in-scope maintenance and support assistance.

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