Download the Terms & Conditions here

TRIAL PERIOD LICENSE

For Apica SAAS LOAD TESTING and Performance Monitoring services

IMPORTANT: READ CAREFULLY: This Apica End User License Agreement ("EULA") is a legal agreement between you (either an individual or as an entity) and Apica Inc. (“Apica”) for the use of the materials referenced in this EULA, which may include computer software, associated media, printed materials, and "on line" or electronic documentation ("Software") and resource files, project and solution files for or resulting from use of the Software (the “Service").

BY INSTALLING, DOWNLOADING, COPYING OR OTHERWISE USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL, DOWNLOAD, COPY OR USE THE SERVICE.

The Service is licensed, not sold. This Service is licensed on a “Software as a Service” or “SaaS” basis, a model of software deployment and licensing whereby a provider licenses an application to customers for use as a service on demand.

1. DEFINITIONS.

a. “Activation Date” is defined as specified herein.

b. “Customer” means the legal entity or individual that enters into this Agreement.

c. “Customer Data” means data, information or material provided or submitted by Customer or any User to Apica in the course of utilizing the Service.

d. “Customer Representative” means the Users designated by Customer as authorized to create User accounts, administer Customer’s use of the Service and otherwise represent Customer for the purpose of this Agreement

e. “Service” means Apica’s online service as described in applicable information on Apica’s web site for LoadTest SelfService (LT/SS) and /or Apica Synthetic Monitoring (WPM)

f. “Trial Period” means the term of the trial period as specified herein.

g. “User” means one of Customer’s employees, representatives, consultants, contractors or agents and other persons expressly permitted by Customer who are authorized to use the Service and have been supplied User identifications and passwords by Customer (or by Apica at Customer’s request).

h. “Apica Content” means Apica-supplied text, audio, video, graphics and other information and data available by means of the Service or on Apica’s web site.

2. GRANT OF LICENSE .

a. Access to Service. Subject to this Trial Period License, Apica will provide you access to and a license to use the Service solely for your internal business purposes.

b. Changes to Service. Apica reserves the right to make changes and updates to the functionality and/or documentation of the Service from time to time.

3. CUSTOMER RESPONSIBILITIES .

a. Nature of Service. You acknowledge that the Service will deliver a high volume of traffic to the designated website and that it is your responsibility to ensure that designated site is capable of accommodating such volume. Apica is not responsible for your testing procedures or for determining or evaluating the ability of the designated site to withstand such volume and load testing.

b. Hardware and Software. Access to and use of the Service requires an appropriate connection to the Internet. Customer is solely responsible, at Customer’s expense, for acquiring, installing, maintaining, and updating all hardware, computer software, and communications capability necessary for use of the Service.

4. FEES GENERALLY

a. During the Trial Period the Customer may use the Service free of charge. For all other access to, and use of, the Service, Customer will pay Apica the applicable fee specified on Apica’s Website.

5. ACCOUNT INFORMATION SUBMITTED TO APICA

a. Customer agrees to provide Apica in writing contact information as Apica may reasonably require, including Customer’s legal company name, street address, email address, and name and telephone number of an authorized contact, as well as the name, User name of the Customer Representative.

b. By submitting contact information and any other personal information Customer authorizes Apica to use and disclose this information, including for the purposes of sending periodic mailings to Customer about Apica products, services, and news.

i. This Agreement will apply to all such mailings (and the mailings will be considered part of the Site Content).

ii. Except as expressly provided in this Agreement, the terms and conditions of Apica's current Privacy Policy apply to Customer’s use of the Web Site and Service.

iii. The Privacy Policy is set forth on Apica's Web Site is incorporated into, and considered a part of, this Agreement.

iv. Customer is responsible for regularly reviewing the Privacy Policy, as Apica reserves the right to change its terms from time to time in Apica's sole discretion.

c. Apica will treat any feedback or suggestions provided by Customer as non-confidential and non-proprietary, and in the absence of a written agreement to the contrary, Customer agrees that Customer will not submit any information or ideas to Apica that Customer considers to be confidential or proprietary.

6. MARKETING MATERIALS

a. Customer consent’s to receiving marketing materials from Apica by e-mail or otherwise relating to Services and other services offered by Apica. Apica will comply with Customer’s request that Apica not send these materials. Any such request should be made through the contact feature of the Apica Web Site.

7. RESTRICTIONS ON USE OF THE SERVICE

a. Customer may not alter, rent, lease, lend, resell or sublicense the Service or provide it as a service bureau.

b. Customer will not “frame” or “mirror” the Service.

c. Customer agrees not to reverse engineer decompile, disassemble or in any other way try to gain access to the Service or its software or other technology.

d. Customer will not use or access the Service to: (i) build a competitive product or service, (ii) make or have made a product using similar ideas, features, functions or graphics of the Service, (iii) make derivative works based upon the Service or the Apica Content or (iv) copy any features, functions or graphics of the Service or the Apica Content.

e. Customer will neither use nor permit others to use the Service (a) to direct volume to any website that you do not own or operate, such as a website of a competitor, (b) for any unlawful, invasive, infringing, defamatory, fraudulent, or obscene purpose, (c) to send spam or other types of unsolicited communications of any kind, regardless of the content or nature of the messages, (c) to send any virus, worm, Trojan horse, or harmful code or attachment, or (d) to alter, steal, corrupt, disable, destroy, trespass, or violate any security or encryption of any computer file, database, website, or network.

f. Customer agrees to accept full responsibility for any damages incurred as a result of load tests initiated by customer

g. Customer agrees to retain no more than one free Apica account.

h. Apica continuously monitor the system for abusive behaviour, and if we see a customer testing a site excessively, we will black list the customer and the target site from test

i.

8. SUPPORT

a. The Apica support team will be available by email to assist the customer in the operation of the supported services and to receive incident reports. Each incident will be allocated a unique reference number by the Apica support team and the customer will be informed of this number for tracking purposes.

b. Contacting Support

i. Support Prerequisites: Customers must provide the following information in the incident report:Name of contact, Customer account name, Email address and Detailed description of technical issue

ii. Support Website: Customers may report a new incident by creating a support ticket, or check the status of an existing support ticket by visiting the support website at: http://support.apicasystem.com

iii. Support Email: Customers may report an incident with the support team by sending an email to: support@apicasystem.com

c. Support Response Targets: The response time targets for providing the initial response for Free/Trial customers is one business day. Response time means the period commencing when an incident is logged and when the support team provides customer with an acknowledgement of the issue including a ticket number.

d. Support restrictions: Free/Trial customers are entitled to submit three (3) complimentary support incidents during a trial period.

e. Apica support coverage hours

i. North America: Mon–Fri, 6 a.m. to 6 p.m. (Local Time Zone)

ii. Europe: Mon–Fri, 7 a.m. to 6 p.m. (Local Time Zone)

iii. Asia: Mon–Fri, 9 a.m. to 6 p.m. (UTC+3)

9. CONTROL OF PASSWORDS AND ACCESS

a. Customer is responsible for all activities that occur under Customer’s User accounts.

b. Customer is responsible for maintaining the security and confidentiality of all User usernames and passwords.

c. Customer agrees to notify Apica immediately of any unauthorized use of any Service username or password or account or any other known or suspected breach of security.

10. CUSTOMER DATA

a. All Customer Data submitted by Customer to Apica, whether posted by Customer or by Users, will remain the sole property of Customer or such Users to the full extent provided by law.

b. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Customer Data.

c. Customer may copy for internal use only any reports generated through use of the Service, and any other content accessed through the Service that indicates it may be copied by Apica’s customers.

d. As part of Customer’s use of the Service, Customer may receive reports assessing the performance of Customer’s website during testing. The reports will be generated from sources believed to be reliable. However, Apica does not guarantee the accuracy, adequacy, or completeness of the reports and is not responsible for any errors or omissions.

e. Apica will not use the Customer Data for any purpose other than to provide the Service to Customer and for statistical reporting purposes.

f. Apica may aggregate anonymous statistical data regarding use and functioning of its system by its various Users. Such aggregated statistical data will be the sole property of Apica.

g. Apica will use commercially reasonable security measures to protect Customer Data against unauthorized disclosure or use. Apica’s security (Privacy) policies in effect from time to time can be accessed on Apica’s web site.

11. LIMITED LICENSE TO CUSTOMER DATA

a. Subject to the terms and conditions of this Agreement, Customer grants to Apica and its affiliates a non-exclusive license to use, copy, store, transmit and display use technical information, excluding any Confidential Information, and Customer Data to the extent reasonably necessary to provide and maintain the Service. Apica may disclose this information, excluding the Customer’s identity and other information specific to the Customer, to others but not in a form that personally identifies Customer.

12. LINKS TO THIRD PARTY SITES

a. You may link to third party sites through the use of the Service. The third party sites are not under the control of Apica, and Apica is not responsible for the contents of any third party sites, any links contained in third party sites, or any changes or updates to third party sites. Apica is providing these links to third party sites to you only as a convenience, and the inclusion of any link does not imply an endorsement by Apica of the third party site.

13. TAXES

a. Customer is responsible for all taxes arising out of use of the Service, including sales, use, business and occupation, gross receipts, and personal property taxes, but excluding corporate franchise taxes imposed on Apica, taxes based on Apica' gross or net income, and payroll taxes required to be paid with respect to Apica' officers, employees, and agents. If Apica is required to pay any taxes allocated to Customer or related penalties or interest, Customer will promptly pay to Apica the amount paid or required to be collected or paid by Apica.

b. Customer will provide Apica, upon Apica' request, with a copy of such tax exemption certificate or other evidence satisfactory to Apica demonstrating that Customer is exempt from state, county, city or other local sales or use taxes.

c. Customer will notify Apica in a timely manner of any change in Customer’s sales or use tax status.

14. INTELLECTUAL PROPERTY RIGHTS .

a. All title and intellectual property rights in and to Service and Apica Content (including but not limited to any images, photographs, animations, video, audio, music, text and "applets" incorporated into the Service and any copies of the Service that you are expressly permitted to make herein) are owned by Apica or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the Service are the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants no ownership rights to Customer.

b. To minimize the risk of intentional or inadvertent violation of Apica's exclusive rights, Customer will:

i. take reasonable steps to make your personnel aware that the Service is used under license from Apica and to ensure that you and your personnel comply with this Agreement;

ii. make no attempt to nor permit employees or any other third party to make any attempt to copy, alter, modify, improve, or reverse engineer the Service or related software or content or interfere in any manner with the hosting and provision of the Service;

iii. not remove or obscure Apica' copyright, trademark, proprietary rights, disclaimer, or warning notices appearing on any content provided as part of the Service, including reports and other documents obtained through the use of the Service.

c. Customer may not use the trademarks or service marks of Apica without prior written consent.

d. Unless you otherwise notify Apica in writing, Apica may identify Customer as a customer of Apica, including the use of your name, trademarks, logos, or service marks for this limited purpose.

e. No license is granted to Customer except as to use of the Service as expressly stated herein.

f. The Apica name, the Apica logo, and the product names associated with the Service are trademarks of Apica or third parties, and they may not be used without Apica’s prior written consent.

15. WARRANTIES

a. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.

b. Apica warrants that the Service will substantially conform to the description of the Service on the Apica Web Site. If the Service does not conform to this warranty, Apica will refund to you the amounts paid for the nonconforming use of the Service. Any refund must be requested within thirty (30) days after you first encounter any nonconformity.

c. The Service may include gateways, links or other functionality that allows Customer and/or Users to access third party services (“Third Party Services”) and/or third party content and materials (“Third Party Materials”). Apica does not supply and is not responsible for any Third Party Services or Third Party Materials, which may be subject to their own licenses, end-user agreements, privacy and security policies, and/or terms of use. APICA MAKES NO WARRANTY AS TO THIRD PARTY SERVICES OR THIRD PARTY MATERIALS.

d. Customer represents and warrants that it has not falsely identified itself or provided any false information to gain access to the Service and that Customer’s billing information is correct.

16. INDEMNIFICATION

a. Customer will defend, indemnify, and hold Apica (and its officers, directors, employees and agents) harmless from and against all Losses arising out of or in connection with a claim, suit, action, or proceeding by a third party (i) alleging that the Customer Data or other data or information supplied by Customer infringes the intellectual property rights or other rights of a third party or has caused harm to a third party or (ii) arising out of breach of this Agreement.

b. Customer will defend, indemnify, and hold Apica (and its officers, directors, employees and agents) harmless from any expense or cost arising from any third party subpoena or compulsory legal order or process that seeks Customer Data and/or other Customer-related information or data, including, without limitation, prompt payment to Apica of all costs (including attorneys’ fees) incurred by Apica as a result. In case of such subpoena or compulsory legal order or process, Customer also agrees to pay Apica for its staff time in responding to such third party subpoena or compulsory legal order or process at Apica’s then applicable hourly rates.

c. In case of any claim that is subject to indemnification under this Agreement, the party that is indemnified (“Indemnitee”) will provide the indemnifying party (“Indemnitor”) reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under this Agreement. Each party will cooperate in good faith with the other to facilitate the defense of any such claim and will tender the defense and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability.

17. DISCLAIMERS AND LIMITATIONS

a. THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY APICA. THERE ARE NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. APICA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, ACCURACY OR QUIET ENJOYMENT. EXCEPT AS STATED HEREIN, THE SERVICE AND APICA CONTENT ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE SITE CONTENT OR THE INFORMATION PROVIDED ON THE SITE. INFORMATION AT THIS SITE MAY NOT BE CURRENT AT THE MOMENT YOU VISIT THIS SITE AND MAY CONTAIN ERRORS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES. APICA DOES NOT WARRANT THAT USE OF THE SYSTEM WILL BE ERROR-FREE OR UNINTERRUPTED. APICA IS NOT RESPONSIBLE FOR SOFTWARE INSTALLED OR USED BY CUSTOMER OR USERS OR FOR THE OPERATION OR PERFORMANCE OF THE INTERNET

i. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN CASE OF BREACH OF THE ANY REPRESENTATION OR WARRANTY IS THE REFUND OF ANY AMOUNTS PAID BY CUSTOMER TO APICA.

b. IN NO EVENT WILL EITHER PARTY BE LIABLE ON ANY THEORY OF LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), WHETHER OR NOT APICA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

18. TRIAL PERIOD, TERM AND TERMINATION

a. The Term commences on the “Effective Date.”

i. The “Effective Date” is the date the customer activates the service by installing, downloading, copying or otherwise using the Service.

ii. The Trial Period commences on the Effective Date and terminates according to the offer on the SignUp mail.

iii. At the conclusion of the Trial Period Customer will have the option to become a subscriber to the Services. The subscription to the Service will commence on the “Activation Date” set out in the Subscription Agreement.

iv. The “Activation Date” will be the date that Apica first makes the Service available to Customer on a subscription basis and provides email or written notice of the commencement of the subscription for the Service such availability to Customer.

v. The subscription for the Service will automatically renew for successive one-year periods (each a “Renewal Term”) beginning at the end of the Initial Term, unless Customer provides notice of termination not less than 60 days before the end of the Initial Term or current Renewal Term, as applicable. Applicable pricing, including quarterly minimum fees, will continue unchanged from the previous term unless Apica notifies Customer of changes in pricing at least 30 days prior to the expiration of the Initial Term or current Renewal Term, as applicable.

vi. Apica reserves the right to terminate this Agreement and the subscription Service for convenience on not less than 60 days notice.

vii. Apica, in its sole discretion, may suspend or terminate Customer’s username and password, account, or use of the Service and/or terminate this Agreement if Customer materially breaches this Agreement and such breach has not been cured within 10 business days of notice of such breach. Should there be a service suspension Apica reserves the right to charge a fee to reinstate the Service.

b. In the event that this Agreement is terminated (for any reason), Apica will, within 5 days of a Customer’s request, make available one backup of the Customer Data in Apica’s standard format. Customer agrees and acknowledges that Apica has no obligation to retain and may delete Customer Data that remains in Apica’s possession or control more than 60 days after termination.

19. MISCELLANEOUS

a. Reservation of Rights. Apica reserves all rights not expressly granted herein.

b. Captions. All indexes, titles, subject headings, section titles, and similar items are provide for the purpose of reference and convenience and are not intended to be inclusive, definitive, or to affect the meaning or scope of this Agreement.

c. Notice. Apica may give notice by means of electronic mail to Customer’s email address on record in Customer’s account or by written communication sent by first class mail or by courier service to Customer’s address on record in Customer’s account. Such notice will be deemed to have been given upon the expiration of 36 hours after mailing (if sent by first class mail) or sending by courier or 12 hours after sending (if sent by email), or, if earlier, when received. Customer may give notice to Apica by email to sales@algaesoft.com. A party may, by giving notice, change its applicable address, email, or other contact information.

d. Assignment. This Agreement may not be assigned by Customer without the prior written approval of Apica but may be assigned by Apica to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of Apica’s assets involved in the operations relevant to this Agreement, or (iii) a successor by merger or other combination. Any purported assignment in violation of this Section will be void. This agreement may be enforced by and is binding on permitted successors and assigns.

e. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

f. No Agency. No joint venture, partnership, employment, or agency relationship exists between Customer and Apica as a result of this Agreement or use of the Service.

g. No Waiver. The failure of Apica to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by Apica in writing.

h. Force Majeure. Except for the payment by Customer, if the performance of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of such party, that party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.

i. Choice of Law. This Agreement is made and entered into in the State of California and shall be governed by and interpreted in accordance with the laws of the State of California except for its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

j. Dispute Resolution

i. Any dispute, controversy, or claim arising out of, related to or in connection with this Agreement, or to the breach, performance, non-performance, termination or invalidity thereof, shall be finally settled and determined by arbitration administered by the International Center for Dispute Resolution (“ICDR”) under its then current Arbitration Rules. The written award of the arbitrators shall be final and binding upon the parties, and judgment on or enforcement of the award so rendered may be sought, had or entered in any court having jurisdiction.

ii. The ICDR shall appoint a single arbitrator following consultation with the parties. The arbitrator so appointed shall be independent of the parties and shall have an international reputation as being experienced in the legal and technical matters related to the dispute.

iii. The seat of arbitration shall be San Francisco, California, and California law shall be the law of arbitration; provided, however, that the arbitrators may hold hearings at such other locations as the arbitrators shall determine, after consultation with the parties.

iv. The arbitral proceedings and all pleadings and written evidence shall be in the English language. Any written evidence originally in a language other than English shall be submitted in English translation accompanied by the original or true copy thereof.

v. The arbitrators are precluded from awarding punitive or exemplary damages. In no event shall the arbitrators have the powers of an amiable compositeur.

vi. Nothing in this Agreement prohibits any party from seeking interim or conservatory relief in any court of competent jurisdiction; provided, however that neither the filing of an application for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, nor the granting of such relief, shall be deemed to be a waiver of the obligation of the party to have the dispute heard and determined solely and exclusively by arbitration.

vii. The rights and obligations of the parties as described herein shall survive the termination, expiration, non renewal, or rescission of the Agreement between the parties.

k. Attorney Fees. In the event of any dispute, controversy, or claim arising out of, related to or in connection with this Agreement, or to the breach, performance, non-performance, termination or invalidity thereof, the prevailing party will be entitled to recover reasonable attorney fees and expenses, including attorney fees and expenses on appeal or petition for review. The prevailing party means the party that prevails (whether affirmatively or by means of a successful defence) with respect to the claims having the greatest value or importance as reasonably determined by the court or arbitrator.

20. ENTIRE AGREEMENT . This Agreement, together with any applicable Schedule(s), comprises the entire agreement between Customer and Apica and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. No amendment to or modification of this Agreement will be binding unless in writing and signed by an authorized representative of each party.