Last Updated: January 7, 2019
These Terms of Service govern your participation in and/or use of certain services or features of Loadping, a website owned and operated by Loadping, (the "Site," "Loadping", "we" or "our"). By participating in or using the services or features of the Site, you ("you", "your", "User") are agreeing to be bound by these terms of service ("Terms of Service").
1.1 Service Definition
Loadping is a service that empowers website owners to track their website's uptime and load speed.
1.2 Restrictions and Rights
All of the following terms and conditions must be adhered to and are legally binding, immediately upon acceptance of these Terms of Service.
No User Website shall: (a) provide any interface for a Downloadable App, any marketing materials for any Downloadable App, or any hyperlinks to any of the foregoing; (b) be a downloadable or Internet accessible application, as determined by Loadping in its sole reasonable discretion; (c) under any circumstances, be a competitor of any search engine company, as determined by Loadping in its sole reasonable discretion; (d) place, display or use any unauthorized branding or attribution of any kind on such User Website, including without limitation on any Landing Page, Search Results Page or framed in conjunction with any such pages, to indicate that any search engine is providing such results or for other promotional purposes, (e) except to the extent provided by Loadping, contain any pornographic, hate-related or violent content or contain any other material, products or services that (i) violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights, or (ii) would otherwise give rise to civil liability or (f) include content above or below the Landing Page, unless that content is submitted for approval in writing to Loadping and pre-approval in writing is received from Loadping, prior to any such content being displayed on the User Website.
In the event that any website is blocked from use on the Site by Loadping, such website may not participate, either directly or indirectly, in the Site without the express written consent of Loadping. Accordingly, neither User nor anyone acting on behalf of User shall redirect or attempt to redirect the website to the Site through use of embedded redirection or other method intended to avoid the blocking of such website from participation in the Site. Any failure to comply with the terms of this policy may result in an immediate termination of User's account and forfeiture of any commissions earned or to be earned by User hereunder.
Domain Names & Intellectual Property Rights. User shall not place with Loadping or in any way through the Site a domain name to which it does not have valid ownership, as determined by Loadping in its sole discretion. In the event that any such domain name is provided for use in the Site, and such lack of rights or a claim of intellectual property infringement is brought to the attention of Loadping, then Loadping shall have the right to cancel the participation of any such domain name(s) in the Site, and, in appropriate situations, in the sole discretion of Loadping, terminate User's participation in the Site and seek legal recourse against User and any others involved in accordance with these Terms of Service and applicable law.
Representatives and Agents. If a User desires to have a representative or agent manage and control their account with Loadping, either individually or aggregated with other accounts managed by such representative or agent, User's use of such representative or agent shall be subject to the following terms: (i) such representative or agent must have agreed to be bound by these Terms of Service and otherwise must be in good standing with Loadping, as detailed below; (ii) User shall be deemed to have authorized such representative or agent to take any and all actions with respect to the User's account and participation of User's websites in the Site, including without limitation, being the authorized contact for all communications to and from Loadping and being authorized to make any and all changes with respect to User's account with Loadping and Loadping shall be fully entitled to rely on, and shall have no liability to User with respect to, any and all requests, decisions, actions and/or omissions of such representative or agent with respect to User's account and/or websites; and (iii) User's commission payments and User's account with Loadping may be suspended, cancelled or terminated if such representative or agent violates these Terms of Service with respect to any account or websites name participating in the Site which is under its control, even if such breach is unrelated to such User's account. If User desires to remove its representative or agent from its account, it must do so by delivering written notice to Loadping specifically revoking the authority of such representative or agent from such User's account, such revocation not to be effective until written confirmation from Loadping of receipt of its written request. User acknowledges and agrees that in the event User's representative or agent is removed as provided herein, Loadping may change any and all terms applicable to User's commissions, including the rate, payment thresholds and other payment terms to be consistent with other individual Users' accounts, and that User's account may be subject to cancellation if User does not meet minimum performance standards as an individual account.
For purposes of this Agreement, a User or representative shall be in "good standing" if such User (or if a representative, then such representative and each customer of the representative who would be Users hereunder) is not currently in violation of these Terms of Service, has not been in repeated violation of these Terms of Service, even if such past violations have been cured, and has not been subjected to excessive Revenue deductions or adjustments in Loadping's discretion.
Each representative or agent that manages and/or controls accounts or websites participating in the Site for which they are not the owner agrees to be bound by these Terms of Service for all such accounts and websites. Each such representative or agent acknowledges and agrees that (i) a violation of these Terms of Service with respect to any one account managed or controlled by it shall constitute a violation of these Terms of Service for all accounts managed or controlled by such representative or agent and may result in all of such accounts being suspended or terminated, (ii) in the event that Loadping receives complaints or other communications from the owner of accounts or websites managed by such representative or agent expressing their dissatisfaction with such representative or agent, Loadping may, in its sole and absolute discretion, revoke such representative's or agent's status as a representative for accounts or websites with Loadping and Loadping may work directly with such representative's or agent's clients and (iii) it shall treat all confidential information of a managed account confidential and that disclosure of such information to anyone other than Loadping or the client shall constitute a violation of such client's privacy and may result in Loadping revoking such representative or agent's status as a representative for accounts or websites participating in the Site.
Account Access. When a User uses the services provided by Loadping, User will be required to create an account with Loadping to use its web-based interface. User is responsible for selecting and continuously managing his, her or its password and security settings to protect User's account and User's website monetization settings (including User's contact information) from unauthorized changes. User is entirely responsible for maintaining the confidentiality and secrecy of User's password and account security settings, as well as User's other information. All consequences of User's voluntary disclosure of password and account information as well as all activities that occur in User's account are User's responsibility.
User agrees to notify Loadping immediately of any unauthorized use of User's account or any other breach of security. User agrees that it will be responsible for all activity that arises from User's account, whether initiated by User or others on User's behalf and Loadping shall be entitled to rely on any requests which have been initiated from User's account. Loadping disclaims any liability for any activity in User's account, whether initiated or authorized by User or not.
Additional Definitions. As used herein, the following capitalized terms shall have the meanings provided as follows:
"Clicks" means a click by an End User. "Clicks" do not include clicks which are invalid as determined by Loadping's internal tracking system and traffic quality scoring process or for which Loadping does not recognize revenue from its advertiser partners. Invalid Clicks may include clicks (i) generated by automated crawlers, robots or click generating scripts providing traffic which has no intent to sign-up, purchase or otherwise act upon a product or service offering; (ii) multiple clicks on the same advertisement within a brief period of time, or (iii) that an advertiser receives and rejects for a valid business purpose (e.g., a Click which was not generated by an End User).
"User Website" means any website associated with a domain name owned by a User which participates in the services or features of the Site.
"End User" means a bona fide living human Internet user. An "End User" excludes any person or any mechanical, artificial or fraudulent means (such as a so-called robot, spider, software or scraper) lacking an intention to purchase, sign up or otherwise act upon a product or service of the marketer contained on a Landing Page.
"Landing Page" means an html page or a framed html page hosted by or on behalf of Loadping, content from Loadping servers or such servers as Loadping uses.
"Net Revenue" means Revenue adjusted for any bad debt, net credits or returns from previous payment periods, less any amount Loadping determines, in its sole discretion, was the result of improper use of User Websites and as such revenue is otherwise calculated or adjusted by Loadping to take into account (i) any exclusions set forth in these Terms of Service, (ii) the results of Loadping's traffic quality scoring process and (iii) any other adjustments made by Loadping in its sole discretion. Loadping may exclude from Net Revenue monies from traffic that originates from countries where traffic is, in the sole discretion of Loadping, suspect or difficult to track in the normal course of business or is determined to be invalid on a consistent and regular basis by Loadping or its Advertiser.
"Revenue" means estimated gross revenue to be received by Loadping for a particular calendar month as a direct result of Clicks on an advertisement or other promotional link attributable to traffic from Landing Pages or webpages hosted on a User Website pursuant to the Site as reported by Loadping's Advertiser as of the end of such calendar month.
Consequences of Non-Compliance. User acknowledges that, in addition to any other remedies at law that Loadping may have, failure by User to comply with any or all of the terms in these Terms of Service will result in (i) the forfeiture by User of any yet unpaid commissions and/or (ii) the obligation to pay additional compensation from future earnings, over time, to compensate for the monies paid out by Loadping plus applicable interest, limited to 5% per annum of the principal, accrued monthly. Future earnings payment applies only if User is a still existing client. Monies due will be based solely on payments made on such websites with issues of violations for the time period that User's websites subject to the Site were in violation of the terms plus any applicable interest, as stated above. Loadping shall make the determination of length of time and value of any violation of the terms herein, solely and such determinations will be final. User may present information to the contrary up to fifteen (15) calendar days after notification to User of the beginning of the investigation. User agrees to hereby accept Loadping's decisions regarding such violations of the Terms of Service as final and wave any litigation rights, whatsoever, of any issue, compensation or otherwise relating to the decision and/or Terms of Service violations. User or Loadping may terminate these Terms of Service at any time. Loadping reserves the right to access any outstanding balance payments, in its sole discretion, if User, its subsidiary, or related company were to reapply to be a User using the Site at any time in the future. Finally, such failures may also result in the termination of User's account.
2.1 Representations & Warranties
Loadping represents and warrants that it has full power and authority to enter into these Terms of Service. User represents and warrants that (i) it has full power and authority to agree to these Terms of Service, and (ii) it owns or has the right to use all necessary rights to the User domain names and User Websites.
THE SITE, Loadping AND ITS AFFILIATES AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, ADVISORS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, VENDORS, ADVERTISERS AND AGENTS (COLLECTIVELY THE "SITE PARTIES") ARE NOT RESPONSIBLE FOR ANY CONTENT PROVIDED BY THIRD PARTIES (INCLUDING ADVERTISERS). EXCEPT AS EXPRESSLY SET FORTH HEREIN, NONE OF THE SITE PARTIES MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, NONINFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. THE ENTIRE RISK ARISING OUT OF THE USE OF THE SITE OR PERFORMANCE OF THE User WEBSITES REMAINS WITH User. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SITE PARTIES SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING (A) THE SUCCESS OF THE SITE, (B) THE NUMBER OF END USERS, IF ANY, WHO MAY SEE ADVERTISEMENTS THROUGH THE SITE, AND (C) THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF THE SITE. THE SITE IS PROVIDED "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE" WITHOUT WARRANTY, OF ANY KIND, AND ANY USE BY YOU SHALL BE AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SITE PARTIES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR THE USE OF OR INABILITY TO USE THE SITE, EVEN IF Loadping HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL, CUMULATIVE LIABILITY OF THE SITE PARTIES FOR ANY DIRECT DAMAGES INCURRED HEREUNDER SHALL NOT EXCEED FIFTY DOLLARS ($50.00). BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO User.
2.2 Intellectual Property
As between Loadping and User, Loadping (or others it so designates in writing) shall own all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), relating to the Site (and any derivative works or enhancements thereof), including but not limited to, all software, technology, processes, materials, guidelines, documentation, relating in any way to the Site. For purposes of these Terms of Service, "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide. User shall not, and shall not allow any third party to: (i) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any intellectual property in any way related to the Site or Loadping; (ii) affix any unauthorized copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of any Site, or any other technology, software, materials and documentation related to the Site or Loadping; (iii) crawl, index or in any non-transitory manner store or cache information obtained from the Site; (iv) transfer, sell, lease, lend, disclose, or use for co-branding without explicit written permission from Loadping, any aspect of the Site under any timesharing, service bureau or other unauthorized method or access thereto; (v) directly or indirectly access, launch and/or activate the Site through or from any software application or means other than the User Website; or (vi) engage in any action or practice that reflects poorly on the Site, Loadping or its Advertisers, or otherwise disparages or devalues the reputation or goodwill of the same.
User agrees to safeguard and, except for the benefit of the Site, not to disclose to anyone outside the Site any proprietary or confidential information acquired from User's access to the Site. Such information includes, without limitation, business plans, customer lists, operation procedures, trade secrets, design formulas and programming code, know-how and processes, computer programs and inventions, discoveries, and improvements of any kinds.
Loadping reserves the right to change these Terms of Service at any time in its sole discretion and pursuant to applicable law. Amended versions of this Agreement will be effective upon posting at www.Loadping.com, and when such changes are deemed to be material by Loadping, email notice of such amended version will be sent to User. Your continued use of the Site after the effective date of any such changes will constitute your acceptance of and agreement to such changes. If YOU DO NOT WISH TO BE BOUND TO ANY NEW TERMS, YOU MUST TERMINATE THESE TERMS OF SERVICE BY IMMEDIATELY CEASING USE OF THE SITE.
Loadping agrees to use commercially reasonable efforts to minimize unscheduled modification and maintenance interruptions. However, Loadping reserves the right to modify or maintain the Site at any time, with or without notice to User.
User shall indemnify, defend, and hold harmless the Site Parties from and against all liability, demands, claims, costs, losses, damages, recoveries, settlements, and expenses (including interest, penalties, reasonable attorney fees, accounting fees, and expert witness fees) incurred by the Site Parties, known or unknown, contingent or otherwise, directly or indirectly arising from User's breach of any term or provision of these Terms of Service or any way related to User's use of the Site, including but not limited to any claim that the website is owned by someone other than User or that the website infringes on the intellectual property rights of a third party. Loadping shall notify User of any such claim and shall cooperate with User, at User's expense, in defending or settling such claim. User may not settle any such claim in a manner that imposes any non-indemnified costs or otherwise adversely affects Loadping rights without Loadping's prior written consent. Loadping may join in defense with counsel of its choice at its own expense. If User does not assume the defense of any such claim within thirty (30) days after the date notice of such claim is given, Loadping may defend against such claim in such manner as it may deem appropriate at User's expense, including, without limitation, settling such claim, after giving notice of the same to User.
Governing Law. These Terms of Service shall be governed by, and construed in accordance with, the laws of the State of California, without giving any effect to any choice of law provisions thereof that would cause the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms of Service.
Jurisdiction and Venue. Any litigation based hereon, or arising out of, under, or in connection with these Terms of Service, shall be brought and maintained exclusively in the courts of the State of California or in the United States District Court for the District of California. The parties hereto hereby expressly and irrevocably submit to the jurisdiction of the courts of the State of California and of the United States District Court for the District of California for the purpose of any such litigation as set forth above. Each party further agrees that service of any process, summons, notice or document by U.S. certified mail to such party's respective postal address as set forth in the notice section shall be effective service of process for any action, suit or proceeding in the state and federal courts located in the State of California, with respect to any matters to which it has submitted to jurisdiction as set forth above. In addition, each party irrevocably and unconditionally waives application of the procedures for service of process pursuant to the Hague Convention for Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The parties hereto hereby expressly and irrevocably waive, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any such litigation brought in any such court referred to above and any claim that any such litigation has been brought in an inconvenient forum.
Waiver of Jury Trial. Each of the parties hereto hereby waives, to the fullest extent permitted by applicable law, any right to a trial by jury in any action or proceeding to enforce or defend any rights under these Terms of Service and any amendment, instrument, document or agreement delivered or which may in the future be delivered in connection herewith or therewith, and agrees that any such action or proceeding shall be tried before a court and not before a jury.
No Third Party Beneficiaries. These Terms of Service are made solely for the benefit of User and the Site Parties and their respective successors and assigns, and no other person or entity shall have or acquire any right by virtue of these Terms of Service.
Prohibition of Assignment. User may not assign any of its rights or delegate any of its duties under these Terms of Service without the prior written consent of the Loadping. Despite such consent, no assignment shall release the assignor of any its obligations or alter any of its primary obligations to be performed under these Terms of Service.
Successors and Assigns. Except as otherwise expressly provided in these Terms of Service, these Terms of Service shall bind and inure to the benefit of the successors, assigns, heirs, executors and administrators of the parties to these Terms of Service.
Independent Contractor. The relationship of User and Loadping established by these Terms of Service is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other.
Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, terrorism, riot, act of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.
Waiver. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of these Terms of Service shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No failure or delay by Loadping in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
Entire Agreement. Except as may be set forth in an written agreement signed between Loadping and User, these Terms of Service constitute the final, complete, and exclusive statement of the terms of the use of the Site between the parties and supersedes all prior and contemporaneous understandings or agreements of the parties.
Severability. If a court or an arbitrator of competent jurisdiction holds any provision of these Terms of Service to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of these Terms of Service or affecting the validity or enforceability of such provision in any other jurisdiction.
Attorneys Fees. If Loadping prevails in any action, suit, or proceeding arising from or based upon these Terms of Service, Loadping shall be entitled to recover from User Loadping's reasonable attorneys' fees in connection therewith in addition to the costs of such action, suit, or proceeding.
Headings. The headings in these Terms of Service are included for convenience only and shall neither affect the construction or interpretation of any provision in these Terms of Service nor affect any of the rights or obligations of the parties these Terms of Service.
Notice. Any notice, communication or statement relating to these Terms of Service shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile or other confirmed electronic transmission; (iii) when delivered by certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service (including but not limited to Federal Express) to the address of the respective party as indicated herein (or in the case of User, as last provided to Loadping); (iv) in the event of non-material changes to this Agreement, notice shall be deemed effective upon posting at www.Loadping.com; (v) and in the event of material changes to this Agreement, notice shall be effective upon the sending of an email from Loadping to the email address last provided by User.
Survival. Sections 2.1, 2.3, 2.5, 2.7, and any other obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of these Terms of Service shall survive and remain in effect after such happening.
Interpretation. Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of these Terms of Service. These Terms of Service shall not be construed against either party by reason of its drafting.