Terms of Use
Effective August 19, 2022
Thanks for using PFLB. These Terms of Use (“Terms” or “Agreement”) are a legal agreement between you and PFLB, Inc. (“PFLB,” “we,” “our,” or “us”) and govern your use of all the text, data, information, software, graphics, photographs and more that we and our affiliates may make available to you (all of which we refer to as “Documentation”), including our websites and any services, plug-ins, software or other Downloadable Tools (as defined below) that we may provide through any of our websites (the “Platform” or “Website” and together with the Materials, these “Service(s)”). PFLB “Users” are the people who have created a PFLB account (also referred to as “Customer(s)”). A PFLB “Viewer” is a person who visits the PFLB Website but may or may not be a PFLB User.
If you are entering into these Terms on behalf of a company or other organization, you hereby represent and warrant that you are authorized to enter into these Terms on behalf of such company or other organization (“Authorized User”).
READ THESE TERMS CAREFULLY BEFORE BROWSING THIS WEBSITE. USING THESE SERVICES INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THESE SERVICES IF YOU DO NOT ACCEPT THESE TERMS. THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH PFLB.
IF YOU ARE A PFLB USER, AUTHORIZED USER OR VIEWER LOCATED IN THE EUROPEAN ECONOMIC AREA, SWITZERLAND, OR UNITED KINGDOM, THE DATA PROCESSING ADDENDUM ACCOMPANIES THESE TERMS AND SETS FORTH OTHER TERMS OF OUR AGREEMENT THAT APPLY SOLELY TO THE EXTENT ANY INFORMATION YOU PROVIDE TO PFLB INCLUDES PERSONAL DATA OF INDIVIDUALS LOCATED IN THE EUROPEAN ECONOMIC AREA, SWITZERLAND, AND THE UNITED KINGDOM.
Scope
PFLB’s Services facilitate the online load testing of software applications. You may access and use the Services only in accordance with these Terms. Please note that these Terms govern your use of the Services, including, but not limited to, the process through which you load test your software application.
When using the features of the Services, you are subject to any agreements, policies, or guidelines applicable to such features that may be posted from time to time. All such agreements, policies, or guidelines, including the Privacy Notice, the End User License Agreement, and the Data Processing Addendum (as applicable), are hereby incorporated by reference into these Terms.
General Use
We invite you to use these Services for your individual purposes and not for the purposes of reselling (“Permitted Purposes”) – enjoy!
Subject to these Terms, we grant you a limited, personal, non-exclusive, and non-transferable license to use and display the Documentation and a limited, personal, non-exclusive, and non-transferable right to access and use the Service following the set-up of a Free Account or Paid Account as set forth below. You have no other rights in the Service and shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and to the extent Customer is a company or other organization, shall not permit any Authorized Users to (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) knowingly use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or another right of any person, or that violates any applicable law. If you make copies of any portion of this Website while engaging in Permitted Purposes, then you agree to keep on these copies all of our copyright and other proprietary notices as they appear on this Website.
Subject to these Terms, we also grant you a limited, personal, non-exclusive, non-transferable license to download, install, and operate any plug-ins, software, information, or other content that we may have specifically identified within the Website as available for download solely in connection with accessing the Website, including, but not limited to, relevant PFLB browser extensions (“Downloadable Tools”). Such Downloadable Tools are also subject to the additional terms provided to you upon download, including, without limitation, our End User License Agreement.
Our Service is not intended for and may not be used by individuals under 13 years of age except as provided by the Educational Use Section of these Terms. By registering for a PFLB account, you state that you are at least 18 years of age and are responsible for ensuring that all PFLB Users are at least 13 years old. Creating an account with false information is a violation of our Terms, including creating an account on behalf of others or persons under the age of 18.
Account Setup
To use the Website, you need to set up a PFLB account. You may establish either a free account (“Free Account”) or a paid account (“Paid Account”). You are authorized by PFLB to set up only one Free Account. PFLB reserves the right to terminate any additional Free Accounts set up by you and any Free Accounts that have been inactive for over 6 months.
When you create an account, we collect registration-related information, which includes your email address and your name. Once you submit the required registration information, we alone will determine whether or not to approve your proposed account. If approved, you will be sent an email detailing how to complete your registration. As long as you use the account, you agree to provide true, accurate, current, and complete information that can be accomplished by logging into your account and making relevant changes directly. You are responsible for complying with these Terms when you access this Website, whether directly or through any account that you may set up through or on this Website. Because it is your account, it is your job to obtain and maintain all equipment and services needed to access and use this Website, as well as pay related charges. You agree to choose a strong and secure password(s) and maintain the confidentiality of your password(s), including any password of a third-party site that we may allow you to use to access this Website. Should you believe your password or security for this Website has been breached in any way, you must immediately notify us at support@pflb.com.
PFLB or our billing processors collect your billing information when you upgrade to a Paid Account. All information is protected in accordance with our Privacy Policy.
Your account belongs to you. However, PFLB controls the URL(s) assigned to your account and may change or deactivate the URL(s) without prior notice. If your account is paid for by another party for you to use (for example, paid and managed by your employer), the party paying for your account has the right to control it, manage it, and get reports on your use of the Paid Account. The party paying for your account does not have rights nor access to your separate personal account(s) that are not paid for nor managed by that party.
Subscription Period and Subscription Fees
You agree to pay all applicable fees related to your use of this Website, which are fully described on our pricing page. By providing a payment method, you expressly authorize us to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto at regular intervals, all of which depend on your particular subscription and utilized services.
The subscription period for Paid Accounts can be month-to-month, yearly, or another duration described more fully on our pricing page.
Paid Accounts are subject to fees based on your selected account type. For renewals, PFLB will automatically charge your payment method in the amount of the then-current fee for your type of account, plus applicable taxes. Each Renewal Term may include a price increase of the Consumer Price Index (“CPI”) + 3% unless we notify you of a different rate before each Renewal Term starts. All payments are non-refundable. To the extent that payment mechanisms are provided through third parties, you agree that PFLB will have no liability to you arising out of the acts or omissions of such third parties. If applicable, you agree to maintain current billing information.
BY CREATING A PAID ACCOUNT, YOU CONSENT TO ALLOW PFLB TO CHARGE YOUR PAYMENT METHOD, EITHER DIRECTLY OR THROUGH ITS PAYMENT PROCESSORS, FOR THE AMOUNTS DUE FOR YOUR INITIAL SUBSCRIPTION PERIOD AND FOR ADDITIONAL SUBSCRIPTION PERIODS UNTIL YOUR ACCOUNT IS CANCELED OR TERMINATED. PLEASE PRINT OUT THESE TERMS AND CONDITIONS FOR YOUR RECORDS.
Renewal/Cancellation
Paid Accounts will automatically renew for the same subscription period unless you cancel the account by the end of the then-current subscription period. You can cancel your account at any time within the PFLB application. Cancellation will be effective immediately. Please note that after you cancel your account, you may not be able to use or access the Platform, and you will not be entitled to a refund of any fees that you’ve paid.
Unauthorized Activities
To be clear, we authorize your use of these Services only for Permitted Purposes. Any other use of these Services beyond the Permitted Purposes is prohibited and, therefore, constitutes an unauthorized use, which may violate various United States and international copyright laws, the deletion of your PFLB account, or a block from the Services. Unless you have written permission from us stating otherwise, you are not authorized to use these Services in any of the following ways. (Note that these are examples only, and the list below is not a complete list of everything that you are not permitted to do):
You are not allowed to use the Services:
To create a competing product, resell or broker the Services to any third party;
In a manner that modifies, publicly displays, publicly performs, reproduces, or distributes any of the Services;
In a manner that violates any relevant law or the Terms of this Agreement, including but not limited to anything that is illegal in the jurisdiction where the User and/or Authorized User is located;
To stalk, harass, spam, or harm another individual, organization, or business;
To disclose information that you do not have permission to disclose;
To impersonate any person or entity, misstate your Personal Data, or otherwise misrepresent your affiliation with a person or entity;
To interfere with or disrupt the Services or servers or networks connected to the Services;
To use any data mining, robots, or similar data gathering or extraction methods in connection with the Services;
To disseminate any viruses, worms, or otherwise harmful code; or
To attempt to gain unauthorized access to any portion of the Services or any other accounts, computer systems, or networks connected to the Services, whether through hacking, password mining, or any other means;
To submit or store Payment Card Industry data (such as credit card numbers) without using an authorized PFLB payment integration;
To disclose any types of information listed in the California Customer Records statute (Cal. Civ. Code § 1798.80(e)) or other relevant privacy regulations, including medical or health insurance information, education information, employment information, credit or debit card information, or any other financial information, driver’s license, or other government identification number;
To disclose or collect any types of information considered to be protected classification characteristics under California or other relevant law, including Age (if 40 years or older), race, color, ancestry, national origin, citizenship, religion or creed, marital status, medical condition, physical or mental disability, sex (including gender, gender identity, gender expression, pregnancy or childbirth, and related medical conditions), sexual orientation, veteran or military status, and genetic information (including familial genetic information); and
To disclose or collect any information defined by relevant laws as biometric information or any information that falls within the definition of “special categories of data” under EU Data Protection Laws, “protected health information” under California, or other relevant laws or regulations. “Special categories of data” include, for example, information about an individual’s race, ethnic origin, politics, religion, trade union membership, genetics, biometrics, health, sex life, sexual orientation, or criminal records.
Indemnification
You alone are responsible for any violation of these Terms by you. You agree to indemnify and hold PFLB, its parents, subsidiaries, affiliates, officers, agents, employees, resellers or other partners, and licensors harmless from any claim, demand, loss, or damages, including reasonable attorneys’ fees (“Losses”), resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Customer Data, or the use thereof in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates any applicable law or regulation and any Third-Party Claims based on Customer’s or any Authorized Users’ (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by PFLB or authorized by PFLB in writing; or (iv) modifications to the Services not made by PFLB, provided that Customer may not settle any Third-Party Claim against PFLB unless PFLB consents to such settlement, and further provided that PFLB will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
Warranty Disclaimer
THE SERVICES ARE PROVIDED “AS IS,” AND PFLB HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PFLB SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING USAGE OR TRADE PRACTICE. PFLB MAKES NO WARRANTY OF ANY KIND THAT THE PFLB IP, OR SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF WILL MEET THE CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE. PFLB STRICTLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY INTEGRATIONS.
THIS MEANS THAT WE DO NOT PROMISE YOU THAT THE SERVICES ARE FREE OF PROBLEMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. WE MAKE NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SERVICES OR FROM US OR OUR SUBSIDIARIES/OTHER AFFILIATED COMPANIES WILL CREATE ANY WARRANTY. WE DISCLAIM ALL EQUITABLE INDEMNITIES.
Limitation of Liability
PFLB makes no guarantees on the availability of individual load generator nodes or the service as a whole. The correctness of test results, or usability for any particular purpose, depends on many factors (such as profile, scripts running, and requests defined). PFLB will, therefore not assume responsibility for test results.
PFLB WILL NOT BE LIABLE TO YOU OR OTHERS FOR ANY DAMAGES RESULTING FROM YOUR USE OF THE SERVICES OR YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY DOCUMENTATION TO OR FROM THE WEBSITE. IN NO EVENT WILL PFLB BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PFLB WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
IN NO EVENT WILL PFLB’S AGGREGATE LIABILITY OR PFLB’S INDEMNIFICATION OBLIGATIONS ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE GREATER OF (I) THE AMOUNT PAID, IF ANY, BY YOU TO PFLB IN CONNECTION WITH THESE TERMS IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY OR (II) US $100.00.
THIS LIMITATION OF LIABILITY IS PART OF THE BASIS OF THE AGREEMENT BETWEEN YOU AND PFLB AND SHALL APPLY TO ALL CLAIMS OF LIABILITY, EVEN IF PFLB HAS BEEN TOLD OF THE POSSIBILITY OF ANY SUCH DAMAGE AND EVEN IF THESE REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
Local Laws; Export Control
We control and operate the Services from our headquarters in the United States of America, and the entirety of the Services may not be appropriate or available for use in other locations. If you use the Services outside the United States of America, you are solely responsible for following applicable local laws.
PFLB and you shall comply with all relevant United States export control laws and regulations. Without limiting the foregoing: (a) you acknowledge that the Services may be subject to the United States Export Administration Regulations; (b) you affirm that you are not, and you will not (i) permit PFLB Users to access or use the Services in a United States embargoed country; (ii) or permit PFLB Users on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or (iii) permit PFLB Users on the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list; and (c) you are responsible for complying with any local laws and regulations which may impact your right to import, export, access, or use the Services.
Dispute Resolution and Arbitration; Class Action Waiver.
This provision facilitates the prompt and efficient resolution of any dispute that may arise between you and us. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers, or third-party vendors) whenever you also assert claims against us in the same proceeding.
This provision provides that all disputes between you and us will be resolved by binding arbitration because acceptance of these Terms constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. We prefer this because arbitration is less drama-filled than litigation. To be clear, arbitration has no judge or jury, and court review of an arbitration award is limited. The arbitrator must follow this Agreement and can award the same damages and relief as a court (including attorney’s fees). YOU AND PFLB AGREE THAT ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all disputes, you must first give us an opportunity to cure or resolve the dispute, which is first done by emailing us at support@pflb.us the following information: (1) your name, (2) your address, (3) a written description of your claim, and (4) a description of the specific relief you seek. If we do not resolve the dispute within 45 days after receiving your notification, then you may pursue your dispute in arbitration.
Arbitration Procedures
If this provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution), either you or we may initiate arbitration proceedings. JAMS, https://jamsadr.com/, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration will be commenced as an individual arbitration and will in no event be commenced as a class arbitration. This provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration. Because these Services and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit. You or we may initiate arbitration in either Georgia or the U.S. federal judicial district where you are located.
Class Action Waiver
Except as otherwise provided in this provision, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, or private attorney general action) unless both you and PFLB specifically agree to do so following initiation of the arbitration.
Other
You understand and agree that by accepting this provision in these Terms, you and we are each waiving the right to a jury trial or a trial before a judge in a public court. If any clause within this provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this provision, whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire provision will be unenforceable, and the dispute will be decided by a court. This provision will survive the termination of your account with us or our affiliates and your discontinued use of this Website. Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any change to this provision (other than a change to the Notice Address), you may reject any such change and require us to adhere to the language in this provision if a dispute between us arises.
Contact Us
If you have any questions about these Terms or otherwise need to contact us for any reason, you can reach us here.