Load Testing Services Agreement

  1. Services
    1. Subject to and upon the terms and conditions of this Agreement, and contingent on Customer's satisfaction of RAW Digital Media's credit approval requirements, RAW Digital Media agrees to provide Customer with load testing services as described on website at www.rawdigitalmedia.co.uk and/or set out in the Order ("Services"), for the fees stated in the Order.
    2. Where the results of the Services produced by RAW Digital Media in various formats (“Results”) are required they shall be produced by RAW Digital Media and sent to the Customer as soon as reasonably practicable.
    3. Time for performance of the Services and delivery of the Results shall not be of the essence.
    4. RAW Digital Media shall, where any of its employees are present on the Customer’s premises, use reasonable endeavors to ensure that such employees comply with such reasonable site rules and procedures as are notified to RAW Digital Media by the Customer in writing.
    5. RAW Digital Media shall perform the Services on behalf of the Customer using reasonable skill and reasonable care.
    6. The Customer:
      1. shall be responsible for all activities which occur through use of its designated passwords or accounts and shall maintain, and be responsible for, the confidentiality and security of those passwords;
      2. shall promptly respond to all and any of RAW Digital Media’s queries and/or requests for information;
      3. shall co-operate with RAW Digital Media and provide it promptly with all information and access to the websites in respect of which the Services will be provided as is reasonably required by RAW Digital Media;
      4. agrees to provide RAW Digital Media with at least three (3) days advance written notice of its desired testing dates and times where it has purchased testing for an unspecified future date or where it wishes to change any testing dates and/or times which were specified at the time of purchase. RAW Digital Media reserves the right to decline specific testing date and/or time requests if it is unable to provide the Services on such date and/or time, in which case RAW Digital Media will work with the Customer to find the next most suitable date and/or time;
      5. acknowledges and agrees that the Services may cause tested websites to fail and may cause other load associated problems. The Customer agrees that, subject only to Section 8.a, all Services are carried out entirely at the Customer’s risk;
      6. confirms that it has procured the consent of the ultimate owner of the website(s) to provision by RAW Digital Media of the Services and, subject only to Section 8.a, RAW Digital Media shall have no liability for any costs, liability, claims, losses, damages or expenses suffered or incurred directly or indirectly because of or in connection with a failure by the Customer to obtain the necessary consent;
      7. agrees to maintain (and warrants to RAW Digital Media that it will maintain throughout the Term of this Agreement) a current copy of all content hosted on the websites in respect of which the Services will be provided;
      8. shall properly and fully back-up all data and copies of all computer programs and data which are held immediately prior to commencement of the Services, and which may be affected by the provision of the Services and, where appropriate, regularly perform backups during the performance of the Services, to enable straightforward recovery and/or reinstatement of any and all data and/or computer programs lost or damaged (whether in whole or part) through provision of the Services;
      9. is liable for the effects of the Services on itself and any third party and subject only to Section 8.a, RAW Digital Media shall have no liability for any costs, liability, claims, losses, damages or expenses suffered or incurred directly or indirectly because of or in connection with the effects of the Services in the Customer or any third party;
      10. shall ensure that during the period the Services are carried out the Customer’s representative (“Representative”) is available (and present) at all times;
      11. warrants that the Representative: (aa) is a technologically competent person; (bb) has substantial experience and knowledge of the Customer’s IT system (to include but without limitation all network and information systems; all computer hardware; databases; all software and firmware) and (cc) is duly authorised to instruct RAW Digital Media (verbally or otherwise) to abort the Services at any time;
      12. acknowledges and agrees that the Services must be carried out within the period stated on the Order. The Customer will remain liable for payment of the fees for any aborted Services or the Services ordered but still unused within the stated period;
      13. acknowledges and agrees that all intellectual property rights of any kind whatsoever in the materials used by RAW Digital Media to carry out the Services or in any registered or unregistered trade mark, service mark, logo, design, database content or format, copyrighted material, software or data owned by RAW Digital Media or any relevant third party owners remain vested in RAW Digital Media or the relevant third party owners and shall not be used by the Customer except with RAW Digital Media’s prior written permission;
      14. acknowledges and agrees that any proprietary interest in any Results shall remain with RAW Digital Media, but the Customer is hereby granted a non-exclusive, nontransferable licence to copy and use the Results for its own internal purposes only. The Customer shall not modify the Results, transfer them to a third party nor incorporate them into its own materials, reports, portals or presentations (except to the extent such materials, reports, portals or presentations are exclusively used internally by the Customer);
      15. acknowledges and agrees that all intellectual property rights of any kind whatsoever which come into existence as a result of the performance by RAW Digital Media of the Services will be the property of RAW Digital Media;
      16. acknowledges and agrees that, subject only to Section 8, RAW Digital Media shall not be liable. whether in contract, tort (including negligence), misrepresentation, under statue or otherwise to the Customer for any costs, liability, claims, losses, damages or expenses suffered or incurred directly or indirectly by the Customer as a result of disruptions to the Services, downtime, outages or inaccurate information received by the Customer or as a result of RAW Digital Media performing maintenance of any hardware or software;
      17. acknowledges and agrees that, subject only to Section 8, RAW Digital Media shall not be liable for any costs, liability, claims, losses, damages or expenses suffered or incurred directly or indirectly because of or in connection with any materials and/or instructions supplied by the Customer which are incomplete, incorrect, inaccurate, illegible or defective in any other way; and/or failure or delay by a third party to provide infrastructure, internet connectivity or other goods and/or services necessary for RAW Digital Media to comply with its obligations in the Agreement; and/or occurrence of an event described in Section 9.g (Force Majeure).
  2. Term
    1. The term of the Agreement shall begin on the date that RAW Digital Media generates an order confirmation e-mail message to Customer announcing the activation of the Customer's account (the "Service Commencement Date") and shall expire upon completion of the delivery of the Services (the "Term")
    2. However, no service shall commence unless and until RAW Digital Media receives and accepts a completed Order from Customer, plus payment in full for Services to be rendered during the Term and any set up charges.
    3. RAW Digital Media reserves the right to reject any submitted Order for any or no reason prior to written acceptance thereof by RAW Digital Media.
  3. Payments
    1. Fees
      1. All fees for Services rendered or provided to Customer shall be in accordance with RAW Digital Media's prices.
      2. RAW Digital Media will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order.
      3. Payments must be made in Great British Pounds. Customer is responsible for providing RAW Digital Media with changes to billing information (such as credit card expiration, change in billing address).
      4. Payment in full of such invoiced amount is due upon receipt of the invoice. Should payment in full of any invoice not be received, RAW Digital Media may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. In addition RAW Digital Media may terminate the Agreement and/or suspend Services without notice if payment for Services is overdue.
      5. Fees not disputed within thirty (30) days of due date are conclusively deemed accurate. Customer agrees to pay RAW Digital Media's reasonable reinstatement fee following a suspension of Service for non-payment, and to pay RAW Digital Media's reasonable costs of collection of overdue amounts, including collection agency fees, legal fees and court costs.
      6. RAW Digital Media takes every possible measure to secure online payment processing. While its own payment processing systems are secure and PCI compliant, its hosting environments are not fully compliant with Payment Card Industry Data Security Standard.
    2. Taxes
      1. At RAW Digital Media's request Customer shall remit to RAW Digital Media all sales, VAT or similar tax imposed on the provision of the Services (but not in the nature of an income tax on RAW Digital Media) regardless of whether RAW Digital Media fails to collect the tax at the time the related services are provided.
    3. Early Termination
      1. Customer acknowledges that the amount of the fee for Services is based on Customer's agreement to pay the fee for the entire Term. In the event RAW Digital Media terminates the Agreement for Customer's breach of the Agreement, or Customer terminates the Service other than in accordance with Section 9, all payments due under the Agreement shall become due immediately upon termination irrespective of any other provision herein. All payments due under the Agreement shall be made without any deduction by way of set off, counterclaim, discount or abatement or otherwise.
      2. Customer acknowledges and agrees that any fees paid or payable in respect of the Services are non-refundable. Accordingly, if the Agreement is terminated and/or the Services are cancelled and/or unused within the period stated on the Order, RAW Digital Media will be entitled to retain such fees.
  4. Customer Information
    1. Customer represents and warrants to RAW Digital Media that the information he, she or it has provided and will provide to RAW Digital Media for purposes of establishing and maintaining the Service is accurate.
    2. If Customer is an individual, Customer represents and warrants to RAW Digital Media that he or she is at least 18 years of age, and RAW Digital Media reserves the right to ask for proof of age (in the form of a valid passport or photo driving licence) and to carry out checks to verify the information provided.
    3. RAW Digital Media may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer's account until Customer has provided a written notice changing the Primary Customer Contact.
    4. RAW Digital Media’s processing of personal data under this Section 4 is described in RAW Digital Media’s Privacy Policy viewable here www.rawdigitalmedia.co.uk as amended from time to time.
  5. Data Protection
    1. Unless otherwise specified, the terms used in this Section 5 (Data Protection) shall have the meaning given to them in the Data Protection Act 2018 and the General Data Protection Regulation (2016/679) (the “Data Protection Legislation”), as applicable from time to time. For the purposes of the Agreement “Personal Data” means personal data (as defined in the Data Protection Legislation) to which RAW Digital Media may (by or on behalf of the Customer) be granted access during the course of the provision of the Services.
    2. The parties acknowledge and agree that RAW Digital Media will be required to process Personal Data only to the extent necessary to provide the Customer’s employees or Representative with access to the Services. Customer must ensure that the Personal Data does not contain any special category or sensitive personal data. If an employee or Representative no longer requires access to the Services, the Customer shall notify RAW Digital Media in writing and RAW Digital Media shall archive the credentials of such employee or Representative. Upon expiry or termination of the Agreement and upon Customer’s written request, RAW Digital Media shall return or delete the Personal Data, and delete any existing copies in its possession unless required to retain such Personal Data under applicable law.
    3. The Customer warrants to RAW Digital Media that the Customer (a) has all requisite authority and has obtained and will maintain (including, by way of incorporating into all materials and processes through which Personal Data is captured) all necessary consents required under the Data Protection Legislation, and (b) has otherwise fully complied with all of its obligations under the Data Protection Legislation, in order to: disclose to RAW Digital Media Personal Data pursuant to Section 5.b above; allow RAW Digital Media to carry out its obligations under and incidental to the Agreement, which may include processing (as defined in the Data Protection Legislation) of Personal Data pursuant to Section 5.b above, and such consents shall apply notwithstanding termination or expiry of the Agreement for any reason. The Customer shall immediately notify RAW Digital Media if any of the consents is revoked or changed in any way which impacts on RAW Digital Media’s rights or obligations under or in connection with the Agreement. Customer must ensure that the Personal Data does not contain any special category or sensitive personal data.
    4. If the Services require the use of test data provided by the Customer (“Load Test Data”), each party agrees that no Personal Data will be included in such Load Test Data. RAW Digital Media shall not be required to verify whether the Load Test Data includes Personal Data. If, however, RAW Digital Media realises that the Load Test Data includes Personal Data, it may notify the Customer and may suspend provision of the Services, in which case the Customer shall provide alternative Load Test Data to RAW Digital Media.
  6. Indemnification
    1. THE CUSTOMER SHALL INDEMNIFY, KEEP INDEMNIFIED AND HOLD HARMLESS RAW Digital Media, ITS OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS AND SUB-CONTRACTORS ON DEMAND AS A DEBT FROM AND AGAINST ANY AND ALL CLAIMS, FINES, LOSSES, DAMAGES, DEMANDS, COSTS, EXPENSES, FEES (INCLUDING, COURT AND LEGAL FEES ON AN INDEMNITY BASIS) AND LIABILITIES (IN EACH CASE WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL) OF WHATEVER NATURE SUFFERED, INCURRED OR SUSTAINED BY RAW Digital Media DIRECTLY OR INDIRECTLY BECAUSE OF OR IN CONNECTION WITH ANY BREACH OR NON-OBSERVANCE OR NON-PERFORMANCE OR NEGLIGENT PERFORMANCE OF THE CUSTOMER’S OBLIGATIONS UNDER THE AGREEMENT (TO INCLUDE BUT WITHOUT LIMITATION CUSTOMER’S OBLIGATIONS UNDER SECTION 1.F AND SECTION 5).
    2. THE CUSTOMER SHALL INDEMNIFY, KEEP INDEMNIFIED AND HOLD HARMLESS RAW Digital Media, ITS OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS AND SUB-CONTRACTORS ON DEMAND AS A DEBT FROM AND AGAINST ANY AND ALL CLAIMS, FINES, LOSSES, DAMAGES, DEMANDS, COSTS, EXPENSES, FEES (INCLUDING, COURT AND LEGAL FEES ON AN INDEMNITY BASIS) AND LIABILITIES (IN EACH CASE WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL) OF WHATEVER NATURE SUFFERED, INCURRED OR SUSTAINED BY RAW Digital Media DIRECTLY OR INDIRECTLY BECAUSE OF OR IN CONNECTION WITH THE CUSTOMER’S USE OF THE SERVICES AND/OR THE RESULTS FOR ANY ILLEGAL PURPOSE OR FOR ANY PURPOSE OTHER THAN THAT PERMITTED BY THE AGREEMENT.
  7. Disclaimer of Warranties
    1. CUSTOMER AGREES TO USE ALL RAW Digital Media’S SERVICES AND ANY INFORMATION OBTAINED THROUGH OR FROM RAW Digital Media AT CUSTOMER’S OWN RISK.
    2. RAW Digital Media DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW RAW Digital Media DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS IS" BASIS.
  8. Limitation of liability
    1. NOTHING IN THIS SECTION EXCLUDES OR LIMITS THE LIABILITY OF RAW Digital Media FOR (I) FRAUD OR FRAUDULENT MISREPRESENTATION; (II) DEATH OR PERSONAL INJURY CAUSED BY RAW Digital Media’S (OR ITS EMPLOYEES’, AGENTS’ OR SUB-CONTRACTORS’) NEGLIGENCE.
    2. SUBJECTONLY TO SECTION 8.a RAW Digital Media SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY LOST PROFIT (DIRECT AND INDIRECT); LOSS OF REVENUE, LOSS OF PRODUCTION OR LOSS OF BUSINESS (IN EACH CASE WHETHER DIRECT OR INDIRECT); LOSS OF OPPORTUNITY (DIRECT AND INDIRECT); LOSS OF USE OR VALUE OF ANY DATA OR SOFTWARE (IN EACH CASE WHETHER DIRECT OR INDIRECT); WASTED MANAGEMENT, OPERATIONAL OR OTHER TIME (IN EACH CASE WHETHER DIRECT OR INDIRECT); LOSS OR DAMAGE ARISING OUT OF ANY FAILURE BY THE CUSTOMER TO KEEP FULL AND UP TO DATE BACK-UPS, SECURITY COPIES OF ANY COMPUTER PROGRAM AND/OR DATA HELD OR USED BY OR ON BEHALF OF THE CUSTOMER; ANY LIABILITY OF THE CUSTOMER TO ANY THIRD PARTIES (WHETHER DIRECT OR INDIRECT) AND/OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL AND/OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, AND/OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE CUSTOMER HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
    3. NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY (BUT WITHOUT PREJUDICE TO SECTION 8.a), THE MAXIMUM AGGREGATE LIABILITY OF RAW Digital Media AND ANY OF ITS EMPLOYEES, AGENTS, SUBCONTACTORS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BUT WITHOUT LIMITATION BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STATUTE, STRICT LIABILITY, AND INFRINGEMENT) AND HOWSOEVER CAUSED SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SERVICES.
  9. Suspension / Termination
    1. Suspension of Service
      1. Customer agrees that RAW Digital Media may suspend Services to Customer without notice and without liability if: (i) RAW Digital Media reasonably believes that the Services are being used in violation of any terms and/or conditions of the Agreement; (ii) RAW Digital Media reasonably believes that the suspension of Service is necessary to protect its network or its other customers, or (iii) as requested by a law enforcement or regulatory agency. Customer shall pay RAW Digital Media's reasonable reinstatement fee if service is reinstituted following a suspension of Service under this subsection.
    2. Termination
      1. The Agreement may be terminated by Customer prior to the expiration of the Term without further notice and without liability if RAW Digital Media fails in a material way to provide the Service in accordance with the terms and conditions of the Agreement and does not cure the failure within ten (10) days of Customer's written notice describing the failure in reasonable detail.
      2. The Agreement may be terminated by RAW Digital Media prior to the expiration of the Term without liability as follows:
        1. without notice if Customer is overdue on the payment of any amount due under the Agreement;
        2. without notice if, in its opinion (acting reasonably), information and access to websites required for satisfactory completion of the Services and requested by RAW Digital Media is either not provided or, if provided, is inaccurate or inadequate;
        3. in accordance with Section 5;
        4. if Customer violates any other provision of the Agreement and fails to cure the violation within ten (10) days of a written notice from RAW Digital Media describing the violation in reasonable detail;
        5. upon one (1) days notice if Customer violates Section 4 (Customer Information) of the Agreement.
      3. Either party may terminate the Agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
    3. Requests for Customer Information
      1. Notwithstanding Section 5 (Data Protection) of the Agreement, Customer agrees that RAW Digital Media may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer's customers or end users that RAW Digital Media believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
    4. Notices
      1. Notices to RAW Digital Media under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on www.rawdigitalmedia.co.uk . Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
    5. Force Majeure
      1. RAW Digital Media shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond RAW Digital Media's control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, theft, destruction, terrorist activity, acts of God or other events of a magnitude or type for which precautions are not generally taken in the industry.
    6. Governing Law
      1. The Agreement shall be governed by the laws of England and all claims concerning the Agreement shall be brought exclusively in English courts located in England. The parties hereby consent to submit to the jurisdiction of such courts and waive any personal jurisdiction or venue defences concerning said forum.
    7. Miscellaneous
      1. Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party's name or trade mark without the other party's prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer / employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority.
      2. RAW Digital Media reserves the right to amend the Agreement and Customer shall be bound by any such amendments. In the event of any inconsistencies between the Agreement and the Order, the terms of the Order shall govern.
      3. The terms on Customer's purchase order or other business forms are not binding on RAW Digital Media unless they are expressly incorporated into a formal written agreement signed by both parties. A party's failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement. A party's waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.
      4. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement.
      5. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without RAW Digital Media's prior written consent. RAW Digital Media's approval for assignment is contingent on the assignee meeting RAW Digital Media's credit approval criteria. RAW Digital Media may assign the Agreement in whole or in part.
      6. The Agreement together with the Order constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.