OctoPerf.com Terms and Conditions
Terms Version Date: September 14, 2015
octoperf.com . ("we", "us", "our", "OctoPerf", or "octoperf.com") provides a Service or Software ("Service" or "Software") that allows users to test the performance of their web and phone applications, websites and APIs, using cloud-computing resources. The Service or Software Includes all services provided on our website, including, but not limited to, the Documentation. octoperf.com also provides a consulting ("Consulting") service to clients on some specific IT topics like: performance testing campaign, performance testing methodology, performance testing training. Both The Service or Software and Consulting provided by OctoPerf are called the Services ("Services") in this document. The following are the terms and conditions (the "Terms") for use of the Services. By using OctoPerf’s Services you ("User" or "you"), acknowledge that you have read, understood and agree to abide by all terms and conditions of these Terms and be liable for any violations of these Terms. If you are an individual acting as a representative of a corporation or other legal entity which wishes to use the OctoPerf Service, then you represent and agree that you have the authority to accept these Terms on behalf of such corporation or other legal entity and that all provisions of these Terms will bind that corporation or other legal entity as if it were a party to these Terms. OctoPerf provides the Services to you subject to the following Terms and Conditions ("TaC"), which may be updated by OctoPerf from time to time as described below. By accessing and using the Services, you accept and agree to be bound by the terms and provision of the TaC. All such guidelines or rules are hereby incorporated by reference into the TaC.
License and Detailed description of the Service or Software
Subject to the terms and conditions of these Terms, OctoPerf grants you a limited, revocable, non-exclusive, non-assignable, non-sub licensable, license to use the OctoPerf Service or Software solely as necessary for you to use the Service or Software on your systems, solely for your own internal use. You will not make the Service or Software available for timesharing, application service provider or service bureau use or otherwise generate income from the Service or Software (unless a duly signed partner agreement has been entered into between you and OctoPerf that specifically permits such use of the Service or Software for the benefit of third parties). All rights in and to the Service or Software not expressly granted to you in these Terms and all intellectual property rights therein are reserved and retained by OctoPerf and its licensors without restriction. Without limiting the generality of the foregoing, you agree not to (and not to allow any third party to):
- sublicense, distribute, or use the Service or Software outside of the scope of these Terms
- copy, modify, reproduce, adapt, translate or otherwise create derivative works of the Service, Software or any documentation related thereto,
- reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Service or Software or any part thereof, except as expressly permitted by the law in effect in the jurisdiction in which you are located,
- rent, lease, license, sell, assign or otherwise transfer rights in or to the Service or Software or any part thereof,
- use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service or Software for any purpose without the express written consent of OctoPerf,
- register, attempt to register, or assist anyone else to register any trademark, trade name, service marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with OctoPerf other than in the name of OctoPerf,
- remove, obscure or alter any notice of copyright, trademark or other proprietary notices or labels placed on Service or Software,
- use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or Software.
You are responsible for obtaining access to the Service or Software, including securing access to the password, and that access may involve third-party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Service or Software. You understand that the technical processing and transmission of the Service or Software, including your Content, may involve:
- transmissions over various networks; and,
- changes to conform and adapt to technical requirements of connecting networks or devices.
Consultants for Consulting missions
OctoPerf automatically appoints a qualified consultant to make the Consulting mission for the User. Consultants may be part of OctoPerf team or chosen among the OctoPerf's qualified consultant network. The User will be informed about the person in charge of the mission via an e-mail or directly in the Proforma invoice or Invoice before the start of the mission. If an external consultant is appointed to make the mission, the User may have the insurance that such consultant has the know-how and necessary skill to correctly lead this responsibility.
Registration Obligations and Restrictions
In consideration of your use of the Services, you represent that you are of legal age to form a binding contract and are not a person barred from using the Services under the laws of your applicable jurisdiction. You also agree to:
- provide true, accurate, current and complete information about yourself as prompted by the Services' registration form (the "Registration Data") and,
- maintain and promptly update the Registration Data to keep it true, accurate, current and complete.
If you provide any information that is untrue, inaccurate, not current or incomplete, or OctoPerf has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, OctoPerf has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof) in the event that such breach continues for a period of 72 hours after written notice to You.
You may not sign up with more than one (1) single email account in order to gain additional free tiers. If you attempt to create more than one (1) free tier account may have all of their free tiers revoked at OctoPerf's sole discretion. You agree not to modify the Service or Software in any manner, or form, or to use modified versions of the Service or Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by OctoPerf for use in accessing the Service.
The Use of the Service and Software and the ability to produce accurate and effective results from it highly depends on the User's expertise in operating the Service or Software. Therefore, you shall be responsible for ensuring that you are competent to use the Service or Software and receive optimal results in accordance with the documentation provided by OctoPerf.
You shall fully comply with all applicable laws and regulations in any use of the Service or Software. You are prohibited from violating system or network security; this may result in criminal and civil liability, including, but not limited to the following: using the Service to penetrate, or attempt to penetrate, security measures of OctoPerf'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; unauthorized use, access, investigation of a system security or authentication measures, traffic or data; using the Service or Software to 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 Services or Software, the Internet, their computer systems and/or data; interference with Service or Software to any User, host or network including, without limitation, mail bombing, flooding, overloading 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; using the Service or Software to gather, or attempt to gather personal information about third parties without their consent; or use the Service or Software to test websites that you are not authorized to test.
You shall not use the Service or Software to post unlawful or defamatory information about a person without their consent, including any information that is harassing or would intentionally inflict emotional distress.
You shall not use the Service or Software to send spam messages, including, without limitation, commercial advertising or mass e-mailings. You shall not use another site's mail server to send e-mail without the express permission of the person authorized on behalf of such site.
OctoPerf reserves the right at all times to prohibit activities that damage its commercial interests, reputation and goodwill.
User Account, Password And Security
If you choose to register through the OctoPerf registration process, you will receive a password and account designation upon completing the registration process. In some cases, you may be able to register through their party services using OpenID, etc. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. OctoPerf will not be liable for any loss or damage arising from your failure to maintain control over access to your account. You agree to maintain and update your information to keep it accurate, current and complete. OctoPerf may refuse to grant you a username that impersonates someone else, is or may be illegal, is or may be protected by trademark or other proprietary rights law, is vulgar or otherwise offensive, or may cause confusion, as determined by us in our sole discretion. You agree not to transfer or sell your use of or access to the Service to any third party.
Do not send us your credit card details by email or by any other electronic transmission or through purchase orders, unless this is done through a secured URL of third party payment platform provided by us. OctoPerf shall not be liable for the storage of or for securing your credit card details provided by you.
The price of the Service or Software license or Consulting depends on the configuration asked by the User. The price of the Service or Software depends on four main parameters: The maximum number of concurrent users to simulate, the number of test(s) to run, the test duration (in hours) and the license validity period. The price of the Consulting depends on three main parameters: The duration (hours or days), the moment of the day (night or day), the location (on client premise or not). Based on the User's demand OctoPerf automatically prepares a Proforma invoice giving the details of the Software license or Consulting. The price doesn't include the communication costs and internet access (internet provider) to use the Software. It remains the User's expense.
By default the Services are paid in advance. The negotiations with OctoPerf may lead to other conditions that erase this "in advance" default condition. In that case, it will be detailed on the proforma Invoice or Invoice.
Payment can be done by the User:
- By card though the website.
- By bank transfer.
Bank details are communicated on the Proforma Invoice or Invoice. Payment is asked by default to be done in Euros.
In case of late of payment, 10% interests rate will start running one day after the payment deadline date has been passed. OctoPerf is not obliged to warn the User about such delay. The User, if he is a professional will be charged a minimum of 40€ of recovery fees as a fixed allowance to legally indemnify OctoPerf for this recovery process.
Duration & Renewal
The Services duration and renewal depends on the agreement in between the User and OctoPerf. From the Service or Software point of view the duration means the validity period to consume the purchased the tests before the license ends. From the Consulting point of view the duration means the total number of days or hours of Consulting the User benefits from OctoPerf.
Ready to purchase license plans displayed on the website or User board have a determined duration and renewal. One shot license plans have a one month duration, or validity period to consume the test(s) before the license plans end. There is no renewal at the period end. Quarterly/compfort license plans have a three months duration, or validity period to consume the test(s) before the license plans end. The quarterly license plans are automatically renewed at period end excepted if the client refuses this renewal by writing to his Octoperf contact. Tailored license have a validity period mentioned in the offer.
Links to Other Resources
We may provide hyperlinks to other websites or resources. Because we have no control over such sites and resources, you acknowledge and agree that we shall not be responsible for the availability of such sites or resources, nor shall we be responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. When you access these third-party sites, you do so at your own risk, and you should refer to each such website’s individual "Terms and Conditions" and not rely on these Terms in anyway.
"Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within five business days, reduced to writing and marked "confidential". However, Confidential Information shall not include any information that is or becomes known to the general public, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information.
Neither party shall use or disclose the other party's Confidential Information without the other party's prior written consent except for the purpose of performing its obligations under these Terms or if required by law, regulation or court order; in which case, the party being compelled to disclose Confidential Information shall give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information. Upon termination of these Terms, the parties shall, if so requested in writing, either return or destroy, within a reasonable period of time from the receipt of such request, all Confidential Information and, upon request, provide written certification of such.
You agree to indemnify and hold OctoPerf and its subsidiaries, affiliates, officers, agents, employees, partners and licensors, including, but not limited to its distributors, resellers and sales agents, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post, transmit, modify or otherwise make available, your use, your connection to the Services, your violation of the Terms and Conditions, or your violation of any rights of another.
You further shall indemnify and hold harmless OctoPerf from and against any and all third party claims and all resulting Liabilities arising out of:
- any damage to any of the OctoPerf's equipment, products, services, and/or software caused by You; or,
- any statements or representations made by you, or your employees or agents, with respect to the OctoPerf's equipment, products, services, and/or Software if such statements or representations are not based upon OctoPerf's published documentation and marketing materials provided by OctoPerf to You for use in connection with the equipment and/or Software or were not other authorized by OctoPerf.
Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. OCTOPERF, OUR SERVICE PROVIDERS, AGENTS AND SUB-CONTRACTORS, EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
OCTOPERF, OUR SERVICE PROVIDERS, AGENTS AND SUB-CONTRACTORS, MAKE NO WARRANTY THAT (I,II,III) THE SERVICE OR SOFTWARE OR CONTENT OR WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (I) THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED, TIMELY, FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS; (II) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR CONTENT OR SOFTWARE WILL BE ACCURATE OR RELIABLE; (III) THAT ALL DEFECTS, IF ANY, WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES OR CONTENT OR SOFTWARE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL
Limitation of Liability.
IN NO EVENT WILL OCTOPERF BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE OR ACCESS THE PLATFORM (INCLUDING ANY APP OR SERVICE), INCLUDING, WITHOUT LIMITATION, ANY LOST, CORRUPTED OR ALTERED DATA OR INFORMATION, LOSS OF USE OF DATA OR INFORMATION, RECOVERY OF DATA OR INFORMATION, OR LOSS OR INTERRUPTION OF BUSINESS OR PROFITS, EVEN IF OCTOPERF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE.
OCTOPERF’S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THESE TERMS WILL AT ALL TIMES BE LIMITED TO THE GREATER OF 100€, AND THE SERVICE FEES PAID BY YOU TO US FOR THE SERVICES PROVIDED DURING THE ONE MONTH PRECEDING THE CIRCUMSTANCES FIRST GIVING RISE TO THE CLAIM OF LIABILITY. IN STATES WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, OCTOPERF’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
The above limitations of liability shall not apply to damages caused by willful intent, gross negligence and for bodily injuries including death for which OctoPerf remains legally liable. MOREOVER, OCTOPERF SHALL HAVE NO LIABILITY FOR:
- ANY CLAIM OF PATENT, TRADE SECRET OR COPYRIGHT INFRINGEMENT BASED ON THE USE OF OTHER THAN THE THEN-LATEST RELEASE OF THE SERVICE OR SOFTWARE, IF SUCH INFRINGEMENT COULD HAVE BEEN AVOIDED BY USE OF THE LATEST RELEASE,
- THE SECURITY AND INTEGRITY OF ANY DATA OR INFORMATION YOU STORE OR TRANSMIT USING THE SERVICE, THE SOFTWARE OR THE INTERNET, INCLUDING ANY DATA OR INFORMATION STORED OR TRANSMITTED BY ANY COMPUTER DESIGNATED AS "SECURE". YOU ARE RESPONSIBLE FOR IMMEDIATELY REPORTING TO OCTOPERF ANY ISSUE THAT COULD COMPROMISE THE SECURITY OR INTEGRITY OF ANY USER OR SYSTEM TAKING PART IN THE SERVICE OR
- ANY CLAIM OF PATENT INFRINGEMENT BASED ON THE (I) USE OF THE SERVICE AND SOFTWARE IN COMBINATION WITH OTHER MATERIALS NOT PROVIDED BY OCTOPERF WHERE INFRINGEMENT WOULD NOT HAVE RESULTED BUT FOR SUCH COMBINATION, OR (II) MODIFICATION OF THE SERVICE OR SOFTWARE BY ANYONE OTHER THAN OCTOPERF WHERE INFRINGEMENT WOULD NOT HAVE RESULTED BUT FOR SUCH MODIFICATION.
- You have the necessary rights to provide the content to OctoPerf, and,
- the content or portion thereof does not, and the use by OctoPerf thereof will not, infringe or misappropriate any third party copyright or other intellectual property right.
Connection Data & Content Privacy
OctoPerf will have the right to collect, extract, compile synthesize, and analyze Data or information resulting from your access to the Service ("Connection Data"). OctoPerf will have the right to consult your project data("Content") resulting from your use of the Service based on your prior written approval. To the extent any Connection Data or Content are collected by OctoPerf, the Connection Data and Content will be solely owned by OctoPerf and will not, under any circumstances, be transmitted, for free or for a fee, to third parties either individual persons or legal entities.
In accordance with French Law No.78-17 of 6 January 1978, as amended, you can always access your personal Data held by OctoPerf, request changes or deletion by sending an e-mail: email@example.com. In particular, you can irrevocably ask for your personal Data to be rectified, completed, updated or deleted if inaccurate, incomplete, misleading, outdated or whose collection or use, disclosure or storage is prohibited.
Modifications to TERMS
OctoPerf reserves the right to modify these Terms (for example, in order to reflect changes to the law or changes to the Service) including but not limited to the charges and fees associated with the use of the Services. You are responsible for regularly reviewing these Terms, and your use of the Services and Software will be deemed as acceptance of these Terms. Changes shall not apply retroactively and shall become effective no sooner than 14 days after they are posted. If you do not agree to the modified terms for the Service or Software, you should discontinue your use of the Service and Software and send OctoPerf an email notification. No amendment to or modification of these Terms will be binding unless:
- in writing and approved by a duly authorized representative of OctoPerf,
- you accept updated terms online, or
- you continue to use the Service and Software after OctoPerf has posted updates to these Terms.
Term and Termination
Either party may terminate any contract of which these Terms form part at any time with a written notice of 72 hours. Upon any termination of these Terms, OctoPerf shall stop providing, and you shall stop accessing the Service. In the event of any termination: - you will not be entitled to any refunds of any usage fees or any other fees, - OctoPerf shall have no liability to you or any third party because of such termination and, - any (i) outstanding balance for Service rendered through the date of termination, (ii) other unpaid payment obligations during the remainder of the term, will be immediately due and payable in full, (iii) all of your historical data will no longer be available to you 30 days after the termination of these Terms.
Jurisdiction and Governing Law
Any contract of which these conditions form part shall be governed by the laws of France, without reference to any of its conflict of law provisions, and be subject to the exclusive jurisdiction of the competent courts of Marseille, France.