BY DOWNLOADING THE SOASTA CLOUDTEST LITE SOFTWARE, LICENSEE HEREBY ACKNOWLEDGES THAT LICENSEE HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THE TERMS OF SERVICE AND SOFTWARE LICENSE AGREEMENT. THE TERM “LICENSEE” REFERS TO THE INDIVIDUAL OR CORPORATE END USER THAT IS SPECIFIED IN THE REGISTRATION INFORMATION ASSOCIATED WITH SUCH END USER FOR THE SOFTWARE.
1. SOASTA, Inc., hereinafter “Licensor” of 444 Castro Street, Suite 600, Mountain View, CA 94041, subject to these Terms and Conditions contained herein, licenses CloudTest Lite, hereinafter “Software” to Licensee.
1.1. Intellectual Property Rights. The Software (including all of its software and technology components), together with all intellectual property rights therein, are the exclusive property of Licensor and its suppliers. The look and feel of the Software is copyright © 2006-2011 SOASTA, Inc. All rights reserved. Licensee may not duplicate, copy, or reuse any portion of the HTML/CSS or visual design elements of the Software without express written permission from Licensor. Other trademarks, Software marks, and trade names that may appear on the Software are the property of their respective owners.
1.2. License Grant. During and limited to the Term (as defined in Section 1.3 hereof), SOASTA, Inc. (“SOASTA”) hereby grants to “Licensee” a non-exclusive, non-transferable, non sublicenseable, limited right to use the SOASTA, Inc. performance and functional testing software known as CloudTest Lite, in object code for internal business purposes only as further defined in Section 1.3 and Section 2.4 hereof.
1.3. Term. Software is licensed perpetually to Licensee.
1.4. Restrictions on Use. Licensee may not: a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any commercial use of, outsource, use on a timeshare or service bureau, or use as an application service provider or managed service provider offering, or otherwise generate income from the Software; b) combine Software with other Licensees in order to test at higher volumes; c) copy the Software onto any public or distributed network, except for an internal and secure cloud computing environment; d) cause or permit the decompiling, disassembly, or reverse engineering of any portion of the Software, or attempt to discover or permit the discovery of any source code or other operational mechanisms of the Software; e) modify, adapt, translate or create derivative works, nor allow any of those actions to occur, based on all or any part of the Software; f) use any portion of the Software as a general SQL server nor g) modify any proprietary rights notices which appear in the Software or components thereof.
1.5. Unauthorized use. Licensee shall notify Licensor immediately of any unauthorized use of the Software or any other known or suspected breach of security or misuse of the Software. Licensee is responsible for use of the Software by any and all employees, contractors, or other users that it allows to access the Software (each, a “User”), and shall ensure that all Users are subject to confidentiality and use provisions at least as restrictive as those contained herein, and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with each User’s use of the Software.
2. General Conditions
2.1. Licensee’s use of the Software is at Licensee’s sole risk, and Licensor makes no representations that the Software will accurately diagnose or correct every performance problem in Licensee’s application.
2.2. All Technical Support shall be provided via the SOASTA CloudLink Community: http://cloudlink.soasta.com.
2.3. Licensee must not modify, adapt or hack the Software or modify another website so as to falsely imply that it is associated with the Software, SOASTA, or any other SOASTA Software.
2.4. Licensee agrees not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Software, use of the Software, or access to the Software without the express written permission by Licensor.
2.5. Licensee understands that the technical processing and transmission of the Software may be transferred unencrypted over a network, and assume all risks related thereto. Licensor shall not be liable to Licensee for any liabilities arising from the operation of the Software over the Internet or other network.
2.6. Licensee agrees not to publish, or to make available publicly, any tests, benchmarks, or product comparisons, mentioning SOASTA without the prior written consent of Licensor.
2.7. Licensee shall comply in full with SOASTA’s Acceptable Use Policy (“AUP”) as follows:
2.7.1.Acceptable Use Policy. Customer shall comply with the then current SOASTA’s Acceptable Use Policy. The current version of the Acceptable Use Policy (“AUP”) is:
2.7.1.1.Update to AUP. SOASTA reserves the right to modify this AUP at any time, by notifying Customer either via e-mail or posting a revised copy of the AUP on our website (www.soasta.com). Customer agrees to review this AUP on a regular basis and remain in compliance at all times.
2.7.1.2.Compliance. This AUP is intended to protect the Software, Customers of SOASTA and the Internet community as a whole from improper, inappropriate, abusive, or illegal activity. When using the Software, Customer are required to comply with this AUP and are expected to adhere to commonly accepted practices of the Internet community. The prohibited uses described below are intended as guidelines regarding improper and inappropriate conduct, and should not be interpreted as an exhaustive list. Generally, conduct that violates law, regulation, or the accepted norms of the Internet community, whether or not expressly mentioned in this AUP is prohibited. SOASTA reserves the right at all times to prohibit activities that damage its commercial interests, reputation and goodwill.
SOASTA makes no guarantee regarding, and assumes no liability for, the security and integrity of any data or information Customer store or transmit via the Software or the Internet, including any data or information stored or transmitted by any computer designated as “secure”. Customer is responsible for immediately reporting to SOASTA any issue that could compromise the security or integrity of any system taking part in the Software.
2.7.1.3.Prohibited Uses.
2.7.1.3.1.No Illegal Use. The Software may be used only for lawful purposes. The transmission, distribution, retrieval or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, data or other material which:
(a.) Infringes, violate or misappropriates any copyright, trademark, trade secret or other intellectual property right;
(b.) Material that is obscene, defamatory, pornographic or indecent;
(c.) Constitutes an illegal threat made against any person or organization; or
(d.) Violates export control laws or regulations.
SOASTA will be the sole arbiter as to what constitutes a violation of this provision, provided that any determination of a violation of this provision shall be made reasonably in good faith based on applicable law, regulation and the accepted norms of the Internet community.
2.7.1.4. No Fraud and Forgery. Customer shall not use the Software in any manner that purposely alters or forges your identity. Customer may not engage, without limitation, in the following activities:
(a.) Sending any message or transmitting any electronic communication using a name or address other than your own for purposes of deception;
(b.) Impersonating someone else by altering your source IP address or by using forged headers or other identity information; or
(c.) Fraudulently concealing, forging or otherwise falsifying your identity in connection with any use of the Software.
2.7.1.5. System and Network Security. Violations of system or network security are prohibited, and may result in criminal and civil liability. Examples include, but are not limited to the following:
(a.) Unauthorized access, use, probe, or scan of a systems security or authentication measures, data or traffic;
(b.) Using the Software to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of SOASTA’s or another entity’s computer software or hardware, electronic communications system, or telecommunications system, whether or not the intrusion results in the corruption or loss of data;
(c.) Interference with Software to any customer, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks, forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting;
(d.) Using the Software to collect, or attempt to collect personal information about third parties without their consent; or
(e.) Using the Software to release or distribute any “virus” or other software or instructions intended to destroy or corrupt or otherwise interfere with others’ access to and/or use of the Software, the Internet, their computer systems and/or data.
2.7.1.6. No Tortious Conduct. Customer shall not use the Software to post tortious, unlawful or defamatory information about a person without their consent, including any information that is harassing or would intentionally inflict emotional distress.
2.7.1.7. No Spamming. Customer shall not use the Software to send unsolicited messages, including, without limitation, commercial advertising and informational announcements or sending mass e-mailings, if such e-mailings provoke complaints from the recipients and Customer shall not use another site's mail server to relay mail without the express permission of the site.
2.7.1.8. Other Activities. Customer shall not use the Software to effect or participate in any of the following activities:
(a.) To post to any Usenet or other newsgroup, forum, e-mail mailing list or other similar group or list articles, which are off-topic according to the charter or other owner-published FAQ or description of the group or list;
(b.) To engage in any of the foregoing activities prohibited under this AUP using the service of another provider, but channeling such activities through a SOASTA provided server, or using a SOASTA provided Software as a mail drop for responses; or
(c.) To falsify user information provided to SOASTA or to other users of the Software.
2.7.2.Consequences of Violation. In addition to any other rights or remedies under applicable law:
2.7.2.1. Suspension and Termination. If SOASTA reasonably determines that the Customer’s activities violate this AUP or pose a clear, present and material risk of harm to SOASTA's business or operations or to SOASTA's other customers, SOASTA may immediately, without prior notice to Customer, take all actions to suspend or otherwise restrict Customer’s use of the Software to the extent necessary to prevent further possible unauthorized activity. Within one hour of taking any action to suspend or restrict a Customer's use of the affected Software, SOASTA shall use commercially reasonable efforts to provide written notice to Customer by facsimile or e-mail stating the actions taken and all facts supporting any allegation of violations of this AUP. Following completion of the investigation, and delivery to SOASTA of a written report setting forth the details and conclusion of such investigation, depending on the severity of the violation, SOASTA may, in its sole discretion, in addition to any other remedies available to under law or its agreement with a Customer, restrict, suspend, or terminate the Software. SOASTA will have no liability to Customer for any such suspension or termination, and SOASTA shall have no obligation to refund or issue any credits (including any service credits) for any outages incurred through Software disablement resulting from an AUP violation.
2.7.2.2. Reporting. If SOASTA becomes aware that such violation is a criminal offense, SOASTA reserves the right to notify the appropriate law enforcement department of such violation. All SOASTA contacts with any third party, including, without limitation, law enforcement, shall be in accordance with applicable law and regulation, including, but not limited to, law and regulation governing the privacy of information as applicable to SOASTA's provision of its Software to its Customers.
2.7.3.Reporting Network Abuse. Any party seeking to report any violations of SOASTA' policies may contact SOASTA at 650.210.4954 or send emailabuse@SOASTA.com.
If available, please provide the following information:
(a.) The IP address, username or other identifying information used to commit the alleged infraction;
(b.) The date and time of the alleged violation, including the time zone or offset from GMT; and
(c.) Evidence of the alleged violation.
3. THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND SOASTA EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, SOASTA DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE’S SPECIFIC REQUIREMENTS, THAT THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE WILL BE COMPLETE, ACCURATE, OR RELIABLE, THAT THE QUALITY OF ANY PRODUCTS, SOFTWARES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY LICENSEE THROUGH THE SOFTWARE WILL MEET LICENSEE’S EXPECTATIONS, OR THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
4. Limitation of Liability
4.1. LICENSEE EXPRESSLY UNDERSTANDS AND AGREES THAT SOASTA SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SOASTA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING ANY SUCH DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE THE SOFTWARE; THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SOFTWARES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SOFTWARES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SOFTWARE; UNAUTHORIZED ACCESS TO OR ALTERATION OF LICENSEE’S TRANSMISSIONS OR DATA; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SOFTWARE; OR ANY OTHER MATTER RELATING TO THE SOFTWARE.
5. Indemnification
5.1. Licensee agrees to indemnify, defend and hold harmless Licensor, its affiliates, officers, directors, employees, consultants, agents, suppliers and resellers from any and all third Party claims, liability, damages and/or costs (including, but not limited to, attorneys fees) arising from End Users use of the Software, Licensee’s violation of these Terms and Conditions or the infringement or violation by Licensee or any End User, of any intellectual property or other right of any person or entity.
5.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SOASTA’S SHALL NOT BE LIABLE TO LICENSEE FOR ANY DAMAGES ARISING FROM OR RELATING TO THE SOFTWARE (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION).
6. Miscellaneous
This Agreement shall be governed by the laws of the State of California without giving effect to any conflicts of laws principles that may require the application of the law of a different jurisdiction. For any dispute or proceeding arising from or relating to this Agreement, Licensee agree to submit to the jurisdiction of, and agree that venue is proper in, the state courts located in San Francisco County, California, and in the federal courts located in the Northern District of California. The failure of Licensor to exercise or enforce any right or provision of the Terms of Software shall not constitute a waiver of such right or provision. The Terms of this Software License Agreement constitutes the entire agreement between Licensee and Licensor and govern Licensee’s use of the Software, superseding any prior agreements between Licensee and Licensor (including, but not limited to, any prior versions of the Terms of Software License). The Software contains open source components that require disclosure. For details visit the CloudTest Lite “About” page.
