Last Updated: 05-12-05
Load, LTD ("Load") is pleased to provide LoadStats ("Service") to the client ("Client") subject to these terms and conditions. These terms and conditions, the LoadStats Service Order and any addenda attached to the Service Order are together the "LoadStats Subscription Agreement" or the "Agreement." This Agreement is effective as of the date Client executes the Service Order ("Effective Date"). To the extent of any conflict among them, the Service Order supersedes these terms and conditions but these terms and conditions supersede any provisions of any purchase order drafted by Client and all related proposals and communications, written or oral. A printed version of this Agreement (with a revision date the same as or prior to the Effective Date) and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Load will provide reporting to Client of browser accesses to Client's web pages (the "Pages"), up to a maximum of 50,000 unique Pages per account and subject to any limits on peak traffic volumes that may be set forth in the Service Order. The reports will include all website traffic related information (for example, browser page views and reloads ("Total Views")) that Load makes generally available to other clients of the Service, subject to any limitations in this Agreement or in any applicable help files or documentation provided to Client.
Promptly after a Service Order for the first site or an added site is received by Load, for each Service account to which Client subscribes, Load will deliver and license to Client for the term of this Agreement a unique account number and a copy of LoadStats customer-side, HTML code ("HTML Code") for the use in connection with the website(s) specified in the Service Order. For the term of this Agreement, Load grants Client a limited right to copy HTML Code for insertion in Client's Pages. Load is not granting any other rights to the Code. Load retains ownership and all rights to the HTML Code, LoadStats logos, trademark, software, and trade secrets.
Client will own the website traffic statistics reported by the LoadStats Service (the "LoadStats Statistics" or "Statistics") and can copy, archive, backup, publish, distribute and use the LoadStats Statistics for any legal purposes. Load has the right to publish Internet-wide statistics based upon raw data aggregated from several or all of its clients' accounts, including Client's LoadStats Statistics, but Load does not have any right to publish the LoadStats Statistics separately or any other specific information derived from Client's LoadStats Statistics that would in any manner identify Client, Client's website(s) or Client's products or services.
"Confidential Information" includes the Statistics 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". Notwithstanding the foregoing, Confidential Information will 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 will use or disclose the other party's Confidential Information except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order. In the event of a legally required disclosure, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing such information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such. Client is responsible for safeguarding the confidentiality of Client's password(s) and user name(s) issued to Client by Load, and for any use or misuse of Client's account resulting from any third party using a password or user name issued to Client. Client agrees to immediately notify Load of any unauthorized use of Client's account or any other breach of security known to Client.
Load will not gather, request, record, require, or collect any Internet users' personally identifying information from Client or from its Pages as part of the Service. Client will not use the Service to track or collect personally identifiable information of Internet users. Load may use cookies and other anonymous identifiers and may create anonymous profiles associated with cookies or other anonymous identifiers, but Load will not associate any data gathered from Client's site with any personally identifying information from any source as part of the Service. Load will comply with all applicable privacy laws and Load's privacy policies stated at www.Load.com/privacy related to its collection of data from Client's site. Client understands that Load's privacy center enables individual Internet users to "opt out" of receiving Load cookies. Client will have and abide by an appropriate privacy policy and will comply with all applicable laws relating to the collection of information from visitors to Client's websites. Client may notify visitors to its websites that it is using Load's LoadStats Service. Client may, if it chooses, include a link to Load's privacy policy within Client's own privacy policy.
Client will pay the fees set forth on the Service Order. Additional charges may apply if actual peak traffic volumes exceed any limits set forth on the Service Order. Client will also pay Load's collection costs (including attorneys' fees) in the event Client does not make required payments when due.
A. Set-up and Implementation Fees. Set-up fees and implementation fees are due at the time of signing of Service Order and are non-refundable.
B. Monthly Usage Charges. Clients who have not chosen the pre-paid usage payment option will pay a monthly usage fee for all accounts as set forth on the Service Order (including any minimum monthly usage charge set forth therein). Because Load makes investments based on anticipated traffic levels, Client agrees that it may be liable to pay a higher minimum monthly usage charge if the traffic measured by Load declines significantly below anticipated levels. This higher minimum usage fee for any given month (if applicable) will equal the charge that would have been incurred for the account(s) as though during such month Client's website had Total Views equaled 50% of the average of Total Views previously counted during the three months in which the most Total Views were counted for such account(s), whether or not such months are consecutive. For example, if during the prior months Load had counted a peak of 1,000,000 Total Views in each of March, June and August, then the minimum monthly usage charge after August would be at least the charge that would apply as though the Client had 500,000 Total Views during the month in question, even if the actual Total Views during a month were only 400,000.
C. Prepaid Usage Fees. Prepaid usage fees are non-refundable and, if unused at the end of an agreed term, will not be applied to any subsequent term.
D. Consulting and other Fees. Any consultation or implementation services will be charged at Load's then applicable daily rates, plus expenses.
Load will invoice Client for any applicable fees (including prepaid usage fees) according to the Service Order. Each month, Load will invoice Client for usage fees (based on Total Views measured by the Service), account service fees, or other applicable fees incurred in arrears for the immediately preceding month. Any applicable set-up fees, implementation fees or prepaid usage fees are due and payable on the invoice date, and all other fees will be due and payable 10 days after the invoice date.
A. Initial Term. The initial term of this Agreement for any account(s) commences on the Effective Date and continues until (a) the expiration of the Service term set forth on the Service Order ("End Date") or, (b) if Client is prepaying usage fees, the earlier to occur of (1) the End Date or (2) the first date that Load no longer possesses prepaid fees for the usage charges then being incurred.
B. Renewal Term. Subject to the payment of any required fees, at the end of the initial term of this Agreement, unless stated differently in a Service Order, this Agreement will automatically renew for successive yearly periods (subject to then current pricing and then current LoadStats terms and conditions as posted at http://www.load.com/terms) as follows: (i) if Client is paying monthly service charges, then the Agreement will automatically renew unless either party gives written notice of its intention not to renew at least 90-days before the expiration of the then current term or (ii) if Client is paying prepaid usage fees, then the Agreement will automatically renew unless either party gives written notice of its intention not to renew prior to the date when 80% of the prepaid Total Views fees have been counted.
A. Termination by Client For Load's Breach. Client may terminate the Agreement immediately if Load breaches the data, confidentiality or privacy obligations of Sections 3, 4 and 5. Client may also terminate the Agreement upon 30-days notice for a service level breach set forth in Section 11 or for any other material breach by Load of this Agreement not covered by Sections 3, 4, 5 or 11, if such other material breach is not cured within the 30-day notice period.
B. Termination by Load For Client's Breach. Load may terminate the Agreement immediately if Client breaches the confidentiality or privacy obligations of Sections 4 and 5 or for Client's failure to pay any fees when due or upon 30-days notice if Client materially breaches any other provision of the Agreement and such material breach is not cured within such 30-day period. Without terminating the Agreement, Load also reserves the right to deny viewing access to Client's account at any time for Client's failure to pay any fees when due. If Load denies viewing access without terminating the Agreement, Load will continue the Service until the Agreement is terminated and Client will remain obligated to pay any fees related thereto.
C. No Other Termination Rights. The parties will have no other right to terminate this Agreement except as set forth above.
Upon any termination or expiration of this Agreement, Load will cease providing the Service, and Client will delete all copies of Load's HTML Code from all Pages. If Client has prepaid usage fees, then upon any termination by Client for Load's breach as set forth in Section 9.a above, Client will receive a refund of any unused portion of such prepaid usage fees. In the event of any termination by Load for Client's breach under Section 9.b, (a) Client will not be entitled to any refunds of any prepaid usage fees or any other fees and (b) any (i) outstanding balance for Service rendered through the date of termination, (ii) monthly minimum charges set forth in Section 6.b, and (iii) other unpaid payment obligations during the remainder of the original stated term in the Service Order will be immediately due and payable in full.
If the counting portion of the Service and/or the Statistics viewers are inoperable ("Downtime") more than 10% in any single calendar month, Client may terminate this Agreement as set forth in Section 9.a, provided that the notice of termination has been received by Load within 30 days after the end of the calendar month during which Downtime exceeded 10%. If Client elects to terminate the Agreement under this Section, such termination will be Client's sole and exclusive remedy with respect to any claims it may have relating to such Downtime for such month. For purposes of the foregoing, Downtime does not include, any inoperable time (1) caused by Client's exceeding the peak volume limits set forth on the Service Order, (2) caused by outages to any public Internet backbones, networks or servers, (3) caused by any failures of Client's equipment, systems or local access services, (4) for previously scheduled maintenance or (5) relating to events beyond Load's control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Load or Client servers are located or co-located. Inaccuracy in aspects of the Client's Statistics is also excluded from Downtime.
Load warrants that its Service will be provided in a timely and professional manner and will conform to its specifications in all material respects. Client acknowledges that (a) the Service cannot be 100% accurate at all times and (b) there will be ascertainable differences between the Statistics and website traffic data reported by other services or software programs. LOAD'S LIABILITY FOR ALL CLAIMS OR INDEMNITIES ARISING OUT OF THESE TERMS & CONDITIONS, WHETHER IN CONTRACT, TORT, WARRANTY OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID BY CLIENT TO LOAD UNDER THIS AGREEMENT DURING THE SIX MONTHS PRECEDING THE CLAIM. CLIENT USES LOAD'S SERVICES AND HTML CODE AT ITS OWN RISK. LOAD'S SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.
LOAD DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES (A) OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, (B) THAT THE SERVICES OR THE CLIENTS' STATISTICS WILL BE UNINTERRUPTED OR ERROR FREE, OR (C) RELATING TO COOKIE ACCEPTANCE BY WEBSITE VISITORS. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF DATA, LOSS OF BUSINESS PROFITS, DEPRECIATION OF STOCK PRICE, BUSINESS INTERRUPTION, OR OTHER SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM OR IN RELATION TO THESE TERMS & CONDITIONS OR THE USE, SUSPENSION, INTERRUPTION OR TERMINATION OF THE SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IF LOAD HAS AGREED TO ANY CUSTOMIZATION OF THE SERVICES OR TO DEVELOP ANY CLIENT REQUESTED SERVICES BEYOND THE SCOPE OF THE SERVICES AS PUBLICLY AVAILABLE, CLIENT'S SOLE REMEDY FOR LOAD'S FAILURE TO PROVIDE THOSE CUSTOM OR REQUESTED SERVICES WILL BE TERMINATION OF THIS AGREEMENT. ANY LOAD SERVICE OBLIGATIONS, WARRANTIES OR SERVICE LEVEL GUARANTIES INCLUDED IN THIS AGREEMENT ARE MADE TO CLIENT ONLY, AND NOT TO ANY CUSTOMER OF CLIENT'S AND ARE CONDITIONED UPON CLIENT'S USE OF THE MOST RECENT HTML CODE AND LOADSTATS SERVICES VERSION OFFERED BY LOAD TO CLIENT FOR CLIENT'S USE.
Load and Client each may refer generally to the existence of this Agreement and use the other's name in press releases, on websites and other promotional material, but will not reveal financial arrangements or other proprietary information contained in this Agreement.
All notices required under this Agreement from one party to the other must be in writing, by certified mail, courier, fax or e-mail and to the address set forth on the applicable Service Order or to such other address as a party designates in writing. Notice will be deemed given (i) immediately if by e-mail, (ii) one day after mailing if by nationally known courier service or three days if mailing by well recognized international courier service, (iii) upon confirmation of successful fax transmission or (iv) upon verification of receipt if by first class certified or registered mail, return receipt requested.
This Agreement will be construed and enforced in accordance with the laws of the State of Nevada without regard to its conflict of laws principles. Exclusive venue for any dispute under this Agreement will be Clark Country, Nevada.
If any term or provision of this Agreement is held to be to any extent invalid or otherwise unenforceable by any court of competent jurisdiction, such provision will be construed as if it were written so as to effectuate to the greatest possible extent the parties' expressed intent, and in every case the remainder of these terms and conditions will not be affected thereby and will remain valid and enforceable. Typographical and clerical errors are subject to correction. The failure of either party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. No joint venture, partnership, employment, or agency relationship exists between Client and Load as a result of this agreement or use of the Service.
If you have any questions or concerns with this policy or any of Load's services, please send your comments to
info@Load.com.