Terms of Use

These Terms of Use include the terms and conditions on which you may use the load testing product (the "Product") offered by BrowserMob, LLC ("BrowserMob") through the website located at http://browsermob.com (this "Site"). By using the Product, you are agreeing to be bound by and comply with these Terms of Use.

  1. Access to Product. Subject to these Terms of Use, BrowserMob will provide you access to and a license to use the Product solely for your internal business purposes. You have no right to provide access to the Product to others or to copy, transfer, sublicense, or otherwise distribute the Product or its components to others.
  2. Your Responsibilities.
    1. Nature of Product. You understand that the Product 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 that volume. BrowserMob is not responsible for your testing procedures or for determining or evaluating the ability of the designated site to withstand testing.
    2. Hardware and Software. Access to and use of the Product requires an appropriate connection to the Internet. You are solely responsible, at your own expense, for acquiring, installing, maintaining, and updating all hardware, computer software, and communications capability necessary for use of the Product.
  3. Fees. BrowserMob may from time to time offer limited trial access to the Product, on terms and subject to conditions specified in connection with such an offer. For all other access to and use of the Product, you will pay BrowserMob the applicable fee specified on this Site. Whether you are accessing and using the Product on a trial basis or for purchased volume, these Terms of Use apply.
  4. Support. BrowserMob will maintain an e-mail address and web page through which you may report problems and send questions about the Product. BrowserMob personnel will monitor e-mail and web requests for support on a regular (but not continuous) basis, and will use reasonable efforts to answer questions about the use and operation of the Product.
  5. Ownership of the Product. BrowserMob and its licensors retain ownership, including all copyright, patent, trademark, and trade secret rights in and to the Product and all software, content, and other components made available through or otherwise used to provide the Product. BrowserMob reserves any rights or licenses not expressly granted to you under these Terms of Use.
  6. Limited License to Copy. You may copy for internal use only any reports generated through use of the Product, and any other content accessed through the Product that indicates it may be copied by BrowserMob's customers.
  7. Reports. As part of your use of the Product, you may receive reports assessing the performance of your website during testing. The reports will be generated from sources believed to be reliable. However, BrowserMob does not guarantee the accuracy, adequacy, or completeness of the reports and is not responsible for any errors or omissions.
  8. Limited Warranty; Sole Remedy. BrowserMob warrants that the Product will substantially conform to the description of the Product on this Site. If the Product does not conform to this warranty, BrowserMob will refund to you the amounts paid for the nonconforming use of the Product. Any refund must be requested within 30 days after you first encounter any nonconformity. The refund is your sole remedy in case of breach of the foregoing warranty.
  9. Disclaimer. EXCEPT AS STATED IN SECTION 8 ABOVE, BROWSERMOB MAKES NO WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. BROWSERMOB DOES NOT WARRANT THAT YOUR USE OR ACCESS TO THE PRODUCT WILL BE ERROR-FREE, UNINTERRUPTED, SECURE, OR VIRUS-FREE.
  10. Indemnity by You. You will indemnify, defend, and hold harmless BrowserMob and its employees against any and all liabilities, losses, costs, and expenses, including attorney fees at trial and on appeal, arising out of your use of the Product or any breach of these Terms of Use by you, including, without limitation, claims by third parties arising from your misuse of the Product.
  11. Limitation of Liability. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE PRODUCT. BROWSERMOB WILL NOT BE LIABLE FOR ANY CLAIMS ATTRIBUTABLE TO ANY ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE INFORMATION OR MATERIAL CONTAINED IN THE PRODUCT. IN NO EVENT WILL BROWSERMOB BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF THE PRODUCT, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST PROFITS, LOST SAVINGS, LOSS OF BUSINESS OPPORTUNITY, OR BUSINESS INTERRUPTION, EVEN IF BROWSERMOB WAS INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE. BROWSERMOB'S MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OF THE PRODUCT, REGARDLESS OF LEGAL THEORY (WHETHER IN CONTRACT, TORT OR OTHERWISE), WILL NOT EXCEED THE FEES PAID BY YOU FOR THE USE OF THE PRODUCT THAT IS THE BASIS FOR LIABILITY.
  12. Protection of BrowserMob's Rights. To minimize the risk of intentional or inadvertent violation of BrowserMob's exclusive rights, you will: take reasonable steps to make your personnel aware that the Product is used under license from BrowserMob and to ensure that you and your personnel comply with these Terms of Use; make no attempt to, and not permit employees or any other third party to make any attempt to copy, alter, modify, improve, or reverse engineer the Product or related software or content or interfere in any manner with the hosting and provision of the Product; and not remove or obscure BrowserMob's copyright, trademark, proprietary rights, disclaimer, or warning notices appearing on any content provided as part of the Product, including reports and other documents obtained through the use of the Product.
  13. Prohibited Uses. You will neither use nor permit others to use the Product (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. If you or your personnel violate any of the foregoing prohibitions, BrowserMob may immediately suspend or terminate your use of the Product without refund.
  14. Marketing Materials. You consent to receiving marketing materials from BrowserMob by e mail or otherwise relating to products and services offered by BrowserMob. BrowserMob will comply with your request that we not send you these materials. Any such request should be made through the contact feature of this Site.
  15. Amendment. BrowserMob may supplement or amend these Terms of Use from time to time by posting the supplemented or amended terms on this Site. The supplemented or amended terms will apply to each use of the Product following the posting. Your continued use of the Product will constitute your agreement to the supplemented or amended terms.
  16. Attorney Fees. In any litigation or arbitration proceeding between the parties, 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 defense) with respect to the claims having the greatest value or importance as reasonably determined by the court or arbitrator.
  17. Entire Agreement. These Terms of Use represent the entire agreement between you and BrowserMob.
  18. Governing Law. These Terms of Use are governed by Oregon law without regard to conflicts of law principles.
  19. Severability. If any provision of these Terms of Use are held invalid or unenforceable in any jurisdiction, then, to the fullest extent permitted by law, (a) the affected provision will remain in full force and effect in all other jurisdictions and (b) all other provisions will remain in full force and effect.
  20. Taxes. You are responsible for all taxes arising out of use of the Product, including sales, use, business and occupation, gross receipts, and personal property taxes, but excluding corporate franchise taxes imposed on BrowserMob, taxes based on BrowserMob's gross or net income, and payroll taxes required to be paid with respect to BrowserMob's officers, employees, and agents. If BrowserMob is required to pay any taxes allocated to you in the preceding sentence (or related penalties or interest), you will promptly pay to BrowserMob the amount paid or required to be collected or paid by BrowserMob. If you are exempt from paying applicable sales or use taxes, then you will provide BrowserMob, upon BrowserMob's request, with a copy of your tax exemption certificate or other evidence satisfactory to BrowserMob demonstrating that you are exempt from state, county, city or other local sales or use taxes. You will notify BrowserMob in a timely manner of any change in your sales or use tax status.
  21. Venue. The state courts in Multnomah County, Oregon, and the United States District Court for the District of Oregon will have exclusive jurisdiction over the parties with respect to any dispute or controversy between them arising under or in connection with these Terms of Use or your use of the Product, and each party consents to such jurisdiction. The parties agree that venue in such forums for purposes of litigation is proper, and the parties waive any claim that such forums are inconvenient or that a more convenient forum can be found.