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// Terms of Use

Effective February 13, 2020

Thanks for using Rungutan.

Please read these Terms carefully. By using Rungutan or signing up for an account, you’re agreeing to these Terms, which will result in a legal agreement between you and Rungutan (“Agreement”). We’ll start with the basics, including a few definitions that should help you understand these Terms. Rungutan (“Rungutan,” “we,” or “us”) Rungutan is an online load testing platform (the “App”) that allows you to, among other things, monitor your website and perform load testing on domains owned by yourself (each a “Domain,” and collectively, “Domains"). The App is offered through our websites, including http://www.rungutan.com and http://app.rungutan.com, and any other website or mobile application owned, operated or controlled by us (we’ll collectively refer to these as the “Rungutan Site,” and together with the App, the “Service”). Rungutan is a Romanian limited liability company whose legal name is SC NETBEARS TEAM SRL d/b/a Rungutan. Rungutan has employees, independent contractors, and representatives (“our Team”). As a customer of the Service or a representative of an entity that’s a customer of the Service, you’re a “Member” according to this Agreement (or “you”).

These Standard Terms of Use (“Terms,” including our Cookie Policy, Data Processing Addendum, and Privacy Policy) define the terms and conditions under which you’re allowed to use the Service in accordance with the Agreement, and how we’ll treat your account while you’re a Member. If you don’t agree to these Terms, you must immediately discontinue your use of the Service.

Some features of the Service are offered as add-ons to your Rungutan account (“Add-ons”). Unless expressly stated otherwise, these Terms apply to the use of Add-ons, and Members agree to the applicable Terms at the time they choose to add the corresponding Add-on. Also note that a Member’s account may have access to unique features of the Service based on their historic usage or status.

Rungutan uses Google APIs to provide certain features of the Service, and, as a result, we are contractually obligated to make our Members aware of certain terms related to the use of such features. Therefore, you acknowledge and agree that by signing up for an account and using the Service, you are also bound by the Google Privacy Policy.

If you download the App through the Apple App Store, Google Play or other app store or distribution platform (“App Provider”), you acknowledge and agree that: (i) these Terms are between us, and not with the App Provider, and that we are responsible for the Service, not the App Provider; (ii) the App Provider has no obligation to furnish maintenance and support services or handle any warranty claims; (iii) the App Provider is not responsible for addressing any claims you or any third party have relating to the App; and (iv) the App Provider is a third party beneficiary of these Terms as related to your use of the App, and the App Provider will have the right to enforce these Terms as related to your use of the App against you.

If you have any questions about our Terms, feel free to contact us.

Account

1. Eligibility

In order to use the Service, you must:

  1. be at least eighteen (18) years old and able to enter into contracts;
  2. complete the account registration process;
  3. agree to these Terms;
  4. provide true, complete, and up-to-date contact and billing information;
  5. not be listed on any government list of prohibited or restricted persons.

By using the Service, you represent and warrant that you meet all the requirements listed above, and that you won’t use the Service in a way that violates any laws or regulations. Note that by representing and warranting, you are making a legally enforceable promise.

Rungutan may refuse service, close accounts of any Members, and change eligibility requirements at any time.

2. Term

When you sign up for an account and agree to these Terms, the Agreement between you and Rungutan is formed, and the term of the Agreement (the “Term”) will begin. The Term will continue for as long as you have a Rungutan account or until you or we terminate the Agreement in accordance with these Terms, whichever happens first. If you sign up for an account on behalf of a company or other entity, you represent and warrant that you have the authority to accept these Terms and enter into the Agreement on its behalf.

3. Closing Your Account

You or Rungutan may terminate the Agreement at any time and for any reason by terminating your Rungutan account or giving notice to the other party. We may suspend the Service to you at any time, with or without cause. If we terminate your account without cause, and your account is a paid account, we’ll refund a prorated portion of your monthly prepayment for a Monthly Plan or Yearly Plan. We won’t refund or reimburse you in any other situation, including if your account is suspended or terminated for cause, such as for a breach or violation of the Agreement. If your account is inactive for 24 or more months, we may terminate your account. Once your account is terminated, you acknowledge and agree that we may permanently delete your account and all the data associated with it, including your Domains. Usernames are unique and can only be used once. If your account has been terminated, the username will no longer be available for use on any future accounts and cannot be reclaimed.

4. Changes

We may change any of the Terms by posting revised Terms on our Rungutan Site. Unless you terminate your account, the new Terms will be effective immediately upon posting and apply to any continued or new use of the Service. We may change the Service, Add-ons, or any features of the Service at any time, and we may discontinue the Service, Add-ons, or any features of the Service at any time.

5. Account and Password

You’re responsible for keeping your account name and password confidential. You’re also responsible for any account that you have access to and any activity occurring in such account (other than activity that Rungutan is directly responsible for that isn’t performed in accordance with your instructions), whether or not you authorized that activity. You’ll immediately notify us of any unauthorized access or use of your accounts. We’re not responsible for any losses due to stolen or hacked passwords. We don’t have access to your current password, and for security reasons, we may only provide you with instructions on how to reset your password. We have the right to update any of your contact information in your account for billing purposes. In addition, you represent and warrant that all information you provide to us when you establish an account, and when you access and use the Service, is and will remain complete and accurate.

6. Account Disputes

We don’t know the inner workings of your organization or the nature of your personal relationships. You won’t request access to or information about an account that’s not yours, and you’ll resolve any account-related disputes directly with the other party. We decide who owns an account based on a number of factors, including the content in that account, and the contact and profile information listed for that account. In cases where differing contact and profile information is present or we are unable to reasonably determine ownership, we’ll require you to resolve the matter through proper channels outside of Rungutan.

When a dispute is identified, we may suspend any account associated with the dispute, including disabling login and sending capabilities, to protect the security and privacy of the data held within the account until the dispute is properly resolved.

Payment

7. Paid Plans

Once you sign up for a paid Monthly or Yearly plan, Rungutan will never automatically upgrade or downgrade your Plan. So, give yourself room to grow if you’ll need it! If you exceed your Monthly Plan usage limits (either by exceeding your audience or monthly email limits, or both), you will incur additional charges for the prior billing cycle based on your current Plan, which will be detailed on your bill and in your account. Before paying for your Plan for the first time, you will have an opportunity to preview the additional charges which would apply to your Plan should you incur them by exceeding your self-selected usage limits. If you decide to proceed, and you incur additional charges, you agree to pay them on or before the next Pay Date, as described below. You will always have the option to change your Plan option at any time. If you change your Plan during a billing cycle, your next charge for that billing cycle will be calculated based on the number of days in that billing cycle during which you were at each of the plans (including any applicable additional charges for the higher tier).

When you sign up for a Monthly or Yearly Plan, you agree to monthly or yearly recurring billing respectively, starting on the date you sign up. Billing occurs on the same day each month, based on the date that you started your Plan.

8. Free Plans

You are automatically granted a free plan once you sign up ("Free Trial"). The trial period will always be available here. While still in trial period, you benefit from the full Service experience, but as soon as the trial period finishes, you will be given the choice to update to a Paying Plan, else your subscription will be automatically suspended.

9. Debit and Credit Cards

>As long as you’re a Member with a Monthly or Yearly Plan or otherwise have an outstanding balance with us, you’ll provide us with valid debit or credit card (“card”) information and authorize us to deduct your charges against that card. You’ll replace the information for any card that expires with information for a valid one. If your card is automatically replaced with a new card by a payment processor, you acknowledge and agree that we’re authorized to deduct any charges on your account against the new card. Anyone using a card represents and warrants that they are authorized to use that card, and that any and all charges may be billed to that card and won’t be rejected. If we’re unable to process your card order, we’ll try to contact you by email and may suspend your account until your payment can be processed.

10. Refunds

We’ll give you a refund for a prepaid month or year or reimburse you if we stop providing the Service and terminate your account without cause. You won’t be entitled to a refund or credit from us under any other circumstances. We may, at our sole discretion, offer a refund, discount or credit.

11. Billing Changes

We may change our fees, including our charges for Monthly or Yearly Plans, at any time by posting a new pricing structure to our Rungutan Site or in your account and/or sending you a notification by email. Quoted fees don’t include sales or other transaction-based taxes of any kind.

Rights

12. Feedback and Proprietary Rights

We own all proprietary rights in the Service, including, but not limited to, patents, trademarks, service marks, trade secrets, copyrights, and other intellectual property rights. You will respect our proprietary rights in the Service.

You represent and warrant that you either own or have permission to use all of the material, content, data, and information (including your personal information and the personal information of others) you submit to Rungutan in the course of using the Service or which Rungutan retrieves or accesses at your direction or with your permission (“Content”). You retain ownership of the Content that you upload to the Service. We may use or disclose your Content (including any personal information therein) only as described in these Terms, our Privacy Policy and Cookie Statement, and, if applicable, our Data Processing Addendum.

You may provide or we may ask you to provide suggestions, comments, input or other feedback (“Feedback”) regarding the Service. If you provide us with any Feedback, then you grant us a royalty-free, non-exclusive, worldwide, sublicensable, and transferable license to use, reproduce, publicly display, distribute, modify, and publicly perform the Feedback as we see fit. Any Feedback you choose to provide is given entirely voluntarily. You understand that you will not receive any compensation for your Feedback, and that we may use any Feedback you provide to improve the Service or to develop new features and services.

Rights

13. Privacy Policy

Your privacy is important to us. Please read our Privacy Policy and Cookie Statement for information regarding how we collect, use, and disclose your Content and personal information and protect your privacy when you use the Service.

14. Right to Review Content

We may view, copy, and internally distribute Content from your Load Tests and account to create algorithms and programs (“Tools”) that help us spot problem accounts and improve the Service. We use these Tools to find Members who violate these Terms or laws and to study data internally to make the Service smarter and create better experiences for Members and their contacts.

Rules and Abuse

15. General Rules

By agreeing to these Terms, you promise to follow these rules:

  1. You won’t perform load tests on Domains that you do not own!
  2. If you use our API, you’ll comply with our Terms.

Rungutan doesn’t allow accounts that promote or incite harm toward others or that promote discriminatory, hateful, or harassing Content. To this end, we may suspend or terminate your account if you distribute any Content that we determine, in our sole discretion, contains either of the following:

  • A Threat of Physical Harm. This means any statement, photograph, advertisement, or other Content that in our sole judgment could be reasonably perceived to threaten, advocate, or incite physical harm to or violence against others.
  • Hateful Content. This means any statement, image, photograph, advertisement, or other Content that in our sole judgment could be reasonably perceived to harm, threaten, promote the harassment of, promote the intimidation of, promote the abuse of, or promote discrimination against others based solely on race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, disease, or immigration status.

We also may suspend or terminate your account if we determine, in our sole discretion, that you are either:

  • an organization that has publicly stated or acknowledged that its goals, objectives, positions, or founding tenets include statements or principles that could be reasonably perceived to advocate, encourage, or sponsor Hateful Content or A Threat of Physical Harm;
  • a person that has publicly made a comment or statement, or otherwise publicly made known a position, including by membership in an organization as discussed above, that could be reasonably perceived as Hateful Content or A Threat of Physical Harm; or
  • a person or organization that has acted in such a way as could be reasonably perceived to support, condone, encourage, or represent Hateful Content or A Threat of Physical Harm.

If you violate any of these rules, then we may suspend or terminate your account.

16. Reporting Abuse

If you think anyone is violating any of these Terms, please notify us immediately. If you received spam you think came from a Rungutan Member, please report it to our abuse team. If you think anyone has posted material that violates any protected marks or copyrights, then you can notify us at this email address.

17. Bandwidth Abuse/Throttling

You may only use our bandwidth for your Content and Load Tests. We may throttle your sending or connection through our API at our discretion.

18. Compliance with Laws

You represent and warrant that your use of the Service will comply with all applicable laws and regulations. You’re responsible for determining whether the Service is suitable for you to use in light of your obligations under any regulations like HIPAA, GLB, EU data privacy laws (including the General Data Protection Regulation) (“EU Data Privacy Laws”), United States export control laws and regulations and economic sanctions laws and regulations (“U.S. Export Control Laws and Regulations”), or other applicable laws. If you’re subject to regulations (like HIPAA) and you use the Service, then we won’t be liable if the Service doesn’t meet those requirements. You may not use the Service for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, Children’s Online Privacy Protection Act, or any other applicable laws.

If you collect any personal information pertaining to a minor and store such information within your Rungutan account, you represent and warrant that you have obtained valid consent for such activities according to the applicable laws of the jurisdiction in which the minor lives.

If you’re located in the European Economic Area, the United Kingdom, or Switzerland (collectively, the “EEA”), and/or perform Load Tests or other Content through the Service to, and/or otherwise collect information through the Service from, anyone located in those countries (each such Member an “EEA Member”), you agree, represent and warrant (as applicable) to Rungutan that:

  1. You will clearly post, maintain, and abide by a publicly accessible privacy notice on the digital properties from which the underlying data is collected that (a) satisfies the requirements of applicable data protection laws, (b) describes your use of the Service, and (c) includes a link to Rungutan’s Privacy Policy.
  2. You will get and maintain all necessary permissions and valid consents required to lawfully transfer data to Rungutan and to enable such data to be lawfully collected, processed, and shared by Rungutan for the purposes of providing the Service or as otherwise directed by you.
  3. You will comply with all laws and regulations applicable to the Load Tests sent through the Service, including those relating to (a) acquiring consents (where required) to lawfully sent Load Tests, (b) the Content of Load Tests, and (c) your Load Tests deployment practices.
  4. You will provide and obtain all notices and obtain all necessary consents required by applicable data protection laws to enable Rungutan to deploy cookies and similar tracking technologies (like web beacons or pixels) lawfully on and collect data from the devices of contacts and end users in accordance with and as described in the Cookie Statement.
  5. You are subject to Rungutan’s Data Processing Addendum (“DPA”), which will apply when and to the extent Rungutan processes Customer Data protected by Data Protection Laws applicable to the EEA (all as defined in the DPA). The DPA sets out our obligations with respect to data protection and security when processing such Customer Data in connection with the Service and forms part of these Terms.

In addition, if you are an EEA Member, you acknowledge and agree that we have your prior written authorization to respond, at our discretion, to any data subject access requests we receive from your contacts made under EU Data Privacy Laws, or, alternatively, we may direct any such contacts to you so that you can respond to the request accordingly.

You agree to indemnify and hold us harmless from any losses, including all legal fees and expenses, that result from your breach of this Section 20.

Liability

19. Limitation of Liability

To the maximum extent permitted by law, you acknowledge and agree that (i) you assume full responsibility for any loss that results from your use of the Service, including any downloads from the Rungutan Site; (ii) we and our Team won’t be liable for any indirect, punitive, special, or consequential damages under any circumstances, even if they’re based on negligence or we’ve been advised of the possibility of those damages; and (iii) in any calendar month, our total liability to you arising under or in connection with the Agreement—whether in contract, tort (including negligence), breach of statutory duty, or otherwise—will be no more than what you paid us for the Service the preceding month.

For the avoidance of doubt, in no instance will we or our Team be liable for any losses or damages you suffer if you use the Service in violation of these Terms, regardless of whether we terminate or suspend your account due to such violation.

20. No Warranties

To the maximum extent permitted by law, we provide the Service as-is. This means that, except as expressly stated in these Terms, we don’t provide warranties, conditions, or undertakings of any kind in relation to the Service, either express or implied. This includes, but isn’t limited to, warranties of merchantability and fitness for a particular purpose, which are, to the fullest extent permitted by law, excluded from the Agreement. Since Members use the Service for a variety of reasons, we can’t guarantee that it’ll meet your specific needs.

21. Indemnity

You agree to indemnify and hold us and our Team harmless from any losses, including legal fees and expenses that directly or indirectly result from any claims you make that aren’t allowed under these Terms due to a “Limitation of Liability” or other provision. (Indemnity is an agreement to compensate someone for a loss.) You also agree to indemnify and hold us harmless from any losses, including legal fees and expenses, that directly or indirectly result from (i) your Content, (ii) your use of the Service, (iii) your violation of any laws or regulations, (iv) third-party claims that you or someone using your password did something that, if true, would violate any of these Terms, (v) any misrepresentations made by you, or (vi) a breach of any representations or warranties you’ve made to us.

22. Equitable Relief

Your violation of these Terms may cause irreparable harm to us and our Team. Therefore, we have the right to seek injunctive relief or other equitable relief if you violate these Terms (meaning we may request a court order to stop you).

23. Subpoena Fees

If we have to provide information in response to a subpoena, court order, or other legal, governmental, or regulatory inquiry related to your account, then we may charge you for our costs. These fees may include attorney and employee time spent retrieving the records, preparing documents, and participating in a deposition.

24. Disclaimers

We and our Team aren’t responsible for the behavior of any third parties, agencies, linked websites, or other Members, including third-party applications, products, or services for use in connection with the Service (each, a “Third-Party Integration”). Your use of any Third-Party Integration and rights with respect to such Third-Party Integration are solely between you and the applicable third party. We are not responsible for the privacy, security or integrity of any Third-Party Integration or the practices and policies of any Third-Party Integration. We make no warranties of any kind and assume no liability of any kind for your use of any Third-Party Integration.

Other Important Stuff

25. Notice to U.S. Government End Users

The Software and the Rungutan Site, including all documentation, are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, and consist of “Commercial Computer Software” and “Commercial Computer Software Documentation.” The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. government end users:

  1. only as Commercial Items,
  2. with the same rights as all other end users, and
  3. according to the Terms.

Published and unpublished rights are reserved under the copyright laws of the United States. The manufacturer is SC NETBEARS TEAM SRL, Romania.

26. Assignments

You may not assign any of your rights under this Agreement to anyone else. We may assign our rights to any other individual or entity at our discretion.

27. Choice of Law

The State of Romania's laws, except for conflict of laws rules, will apply to any dispute related to the Agreement or the Service. You acknowledge and agree that any dispute related to the Agreement or the Service itself will be decided by the state or federal courts in Iasi, Romania, and each party consents to personal jurisdiction in those courts.

28. Force Majeure

We won’t be held liable for any delays or failure in performance of any part of the Service, from any cause beyond our control. This includes, but is not limited to, acts of god, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, zombie apocalypse, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers, or third-party internet service providers.

29. Survivability

Even if this Agreement is terminated, the following sections will continue to apply: Feedback and Proprietary Rights, Compliance with Laws, Limitation of Liability, No Warranties, Indemnity, Choice of Law, Severability, and Entire Agreement.

30. Severability

If it turns out that a section of these Terms isn’t enforceable, then that section will be removed or edited as little as required, and the rest of the Agreement will still be valid.

31. Interpretation

The headers and sidebar text are provided only to make these Terms easier to read and understand. The fact that we wrote these Terms won’t affect the way the Agreement is interpreted.

32. Waiver

If we don’t immediately take action on a violation of these Terms, we’re not giving up any rights under the Terms, and we may still take action at some point.

33. No Changes in Terms at Request of Member

Because we have so many Members, we can’t change these Terms for any one Member or group.

34. Further Actions

You’ll provide all documents and take any actions necessary to meet your obligations under these Terms.

35. Notification of Security Incident

If we become aware of a security incident related to our systems or databases that contain personal information of you or your contacts, we’ll notify you if required by law. In that event, we’ll also provide you with information about that incident so that you can evaluate the consequences to you and any legal or regulatory requirements that may apply to you, unless we’re prevented from doing so by legal, security or confidentiality obligations. Notifying you of a security incident or cooperating with you to respond to one will not be deemed an acknowledgement or assumption of any liability or fault of Rungutan for such incident.

36. Notices

Any notice to you will be effective when we send it to the last email or physical address you gave us or when posted on our Rungutan Site. Any notice to us will be effective when delivered to us along with a copy to our legal counsel: Attn. Legal Department, SC NETBEARS TEAM SRL, Iasi, Romania, or any addresses as we may later post on the Rungutan Site.

38. Entire Agreement

These Terms you’ve agreed to by enabling any Add-ons make up the entire agreement between us in relation to its subject matter and supersede all prior agreements, representations, and understandings. Any Additional Terms will be considered incorporated into the Agreement when you activate the corresponding Add-on.

Where there’s a conflict between these Terms and the Additional Terms, the Additional Terms will control to the extent of the conflict.

Congratulations! You’ve reached the end.

Thanks for taking the time to learn about Rungutan’s policies.