THIS SOFTWARE SERVICES AGREEMENT (the "Agreement") is entered into and effective as of the day you “AGREE” (the “Effective Date”) by and between Pingdar and you or the company or entity you represent ("Client" or “You”).
PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE CLICKING AN “AGREE” OR SIMILAR BUTTON OR INSTALLING OR USING THE SOFTWARE SERVICES (DEFINED BELOW). THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND PINGDAR AND SETS FORTH THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SOFTWARE SERVICES. BY CLICKING AN “AGREE” OR SIMILAR BUTTON OR BY USING THE SOFTWARE SERVICES, YOU ACCEPT AND AGREE TO ABIDE BY THESE TERMS AND CONDITIONS AS PRESENTED TO YOU – ANY CHANGES, ADDITIONS OR DELETIONS BY YOU TO THESE TERMS AND CONDITIONS WILL NOT BE ACCEPTED BY PINGDAR AND WILL NOT BE A PART OF THIS AGREEMENT.
PINGDAR HAS COMPLETE DISCRETION TO UPDATE AND CHANGE THE SOFTWARE SERVICES AGREEMENT FROM TIME TO TIME AND TO CHANGE THE SCOPE OR FEATURES OF THE SOFTWARE SERVICES FROM TIME TO TIME. PINGDAR MAY MAKE SUCH CHANGES WITHOUT NOTICE. IF YOU CONTINUE TO USE THE SOFTWARE SERVICES AFTER ANY SUCH CHANGES, WITH OR WITHOUT NOTICE, YOU WILL BE CONSIDERED TO HAVE CONSENTED TO THEM.
1. Provision of Software Services
Subject to the terms and conditions of this Agreement, Pingdar shall provide certain software services (the “Software Services”) and user documentation, if any, provided by Pingdar on the use of Software Services (“Documentation”) to Client and certain individuals or entities that are authorized to use the Software Services (“Authorized Users”). For clarification, Documentation means the official user documentation provided by Pingdar to Client on the use of the Software Services. Any installation guide or end user documentation not prepared or provided by Pingdar; any online community site; unofficial documentation, videos, white papers, or related media; or feedback does not constitute Documentation.
Pingdar hereby grants Client a limited, non-exclusive, non-transferable and non-sublicensable license to access and use the Software Services and Documentation during the Term (defined below) provided Client complies with the terms and conditions of this Agreement.
If the Software Services and Documentation are provided to Client for evaluation purposes, Pingdar grants to Client a limited, non-exclusive, non-transferable, non-sublicensable and royalty-free evaluation license to use the Software Services solely for evaluation prior to purchase (“Evaluation License”). The Evaluation License shall terminate on the end date of the pre-determined evaluation period or immediately upon notice from Pingdar, at its sole discretion. Notwithstanding any other provision contained herein, Software Services provided pursuant to an Evaluation License are proved to Client “AS IS” without indemnification, support, or warranty of any kind, express or implied. Except to the extent such terms conflict with the specific evaluation terms set forth in the Section, all other terms of this Software Services Agreement shall apply to the Software Services under an Evaluation License.
2. Client’s Obligations; License Restrictions
Client will (i) be responsible for its and its Authorized Users’ compliance with this Agreement; (ii) be solely responsible for the accuracy, quality, integrity, and legality of Client Data (defined below) and means relating to acquisition of the Client Data; (iii) not provide, make available to, or permit other individuals to use or access the Software Services, except under the terms listed herein, and that Client will responsible for any unauthorized activity of the Software Services; (iv) not sell, resell, rent, or lease the Software Services; (v) not modify, translate, reverse engineer, decompile, disassemble, create derivative works, or otherwise attempt to derive the source code of the Software Services; (vi) not remove any proprietary notices or labels on the Software Services; (vii) not license the Software Services if Client (or any of its Authorized Users) is a direct competitor of Pingdar or its affiliated entities for the purposes of monitoring the Software Service’s availability, performance, or functionality or for any other benchmarking or competitive purposes; (viii) not use the Software Services to store or transmit infringing, libelous, unlawful, or tortious material or to store or transmit material in violation of third party privacy rights; (ix) not use the Software Services to store or transmit malicious code; or (x) interfere with or disrupt the integrity or performance of the Software Services.
3. Fees & Payment
Client’s Obligations; License Restrictions. All orders placed will be considered final. Fees will be due and payable as set forth on the web site or otherwise conveyed to you during the order process. Fees for any Renewal Term shall be at Pingdar’s then standard rates, currently in effect, or if applicable, as otherwise set forth on the web site or otherwise conveyed to you by Pingdar. If Client fails to pay in accordance with the payment terms, Pingdar shall be entitled, at its sole discretion, (i) to suspend provision of the Software Services temporarily until Client fulfills its pending obligations or (ii) to terminate this Agreement for breach. Unless otherwise stated, all payments made under this Agreement shall be in United States dollars. Except as otherwise expressly provided herein, fees are non-refundable.
4. Upgrading / Downgrading Account Type
Client may, at any time during the Term, upgrade or downgrade to a different Pingdar account type. The change in account type will take effect immediately. After an upgrade in account type, Client will be billed immediately for the additional fees due under the upgraded account type for the remaining time of the applicable Term. The amount due and owing for the upgraded account type will be reduced by what the amount the Client has already paid for the applicable Term. In regard to a downgraded account type, Client will be billed the fees due for the downgraded account type at the commencement of the Renewal Term.
The fees are exclusive of taxes, and Client shall pay or reimburse Pingdar for all taxes arising out of transactions contemplated by this Agreement. If Client is required to withhold any tax for payments due under this Agreement, Client shall gross its payments to Pingdar so that Pingdar receives sums due in full and free of any deductions. Client will provide documentation to Pingdar showing that taxes have been paid to the relevant taxing authority. “Taxes” means any sales, VAT, use, and other taxes (other than taxes on Pingdar’s income), export and import fees, customs duties and similar charges imposed by any government or other authority. Client hereby confirms that Pingdar can rely on the name and address that Client provides to Pingdar when Client agrees to the Software Services fees or in connection with Client’s payment method as being the place of supply for sales tax and income tax purposes or as being the place of supply for VAT purposes where Client has established its business.
6. Term & Termination
Term. Unless terminated earlier in accordance with this Section, this Agreement will begin on the Effective Date and will continue until the end of the period specified in the applicable quote or order form for the Software Services (the “Initial Service Term”) and shall be automatically renewed for additional terms of the same duration as the Initial Service Term (each, a “Renewal Term”, collectively with the Initial Service Term, the “Term”).
Termination. Client may terminate this Agreement prior to expiration of the then-current Term. Pingdar may terminate this Agreement upon thirty (30) days prior written notice, or immediately if the Client becomes subject to bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, the Client infringes or misappropriates Pingdar’s intellectual property, or breaches the License Restrictions or Confidentiality provision set forth herein.Effect of Termination. Termination shall not relieve Client of the obligation to pay any fees or other amounts accrued or payable to Pingdar through the end of the then-current Term. Client shall not receive a credit or refund for any fees or payments made prior to termination. Sections 3 through 12 and 14 shall survive any termination or expiration of this Agreement.
7. Client Data
Pingdar agrees that the data and information uploaded by Client (or Authorized Users of Client) that is stored or processed via the Software Services (the “Client Data”) shall be treated as confidential pursuant to Section 8 by Pingdar and shall remain Client’s sole property. Client agrees that it is responsible for maintaining and protecting backups of all Client Data directly or indirectly processed using the Software Services and that Pingdar is not responsible for the failure to store, the loss, or the corruption of Client Data. Client agrees that Pingdar and its affiliated entities will collect and track technical and related information about Client and Client’s use of the Software Services, including Client’s internet protocol address, the hardware and software that Client utilizes, and various usage statistics to assist with the necessary operation and function of the Software Services and for internal purposes only, including without limitation to facilitate in the provision of updates, support, invoicing, marketing by Pingdar, its affiliated entities, or its agents, and research and development. In the event that Pingdar is required or ordered to disclose Client Data to a third party pursuant to judicial order or other compulsion of law, if legally permitted, Pingdar shall take all commercially reasonable steps to provide the Client with prompt notice of any relevant order or basis for disclosure so as to allow Client to take whatever steps it can to object to such compulsory disclosure if Client so chooses.
As used in this Agreement, "Confidential Information" means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally, or by inspection of tangible objects (i) that the disclosing party identifies as confidential or proprietary or (ii) Software Services. Confidential Information may also include confidential or proprietary information disclosed to a disclosing party by a third party. The receiving party will: (i) hold the disclosing party’s Confidential Information in confidence; (ii) restrict disclosure of such Confidential Information to those of its employees or agents with a need to know such information and who are bound (i.e., as a condition to their employment or agency) by obligations respecting the protection of confidential information, which are substantially similar to those of this Agreement and which would extend to the disclosing party's Confidential Information; (iii) use such Confidential Information only for the purposes for which it was disclosed, unless otherwise set forth herein; and (iv) to the extent applicable, not modify, reverse engineer, decompile, create other works from, or disassemble any such Confidential Information, unless expressly permitted by applicable law without the possibility of contractual waiver or otherwise specified in writing by the disclosing party. The restrictions will not apply to Confidential Information to the extent it (i) was in the public domain at the time of disclosure; (ii) became publicly available after disclosure to the receiving party without breach of this Agreement; (iii) was lawfully received by the receiving party from a third party without such restrictions; (iv) was known to the receiving party, its employees or agents without such restrictions prior to its receipt from the disclosing party; (v) was independently developed by the receiving party without breach of this Agreement; (vi) was generally made available to third parties by the disclosing party without such restriction; or (vii) is required to be disclosed by the receiving party pursuant to judicial order or other compulsion of law, provided that the receiving party will provide to the disclosing party prompt notice of such order and comply with any protective order imposed on such disclosure. The parties agree that any material breach of Section 2 or this Section will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of these Sections in addition to any other relief to the applicable party may be entitled.
9. Proprietary Rights
The Software Services are licensed, not sold. Use herein of the word “purchase” in conjunction with licenses of the Software Services shall not imply a transfer of ownership. Except for the limited rights expressly granted by Pingdar to Client in Section 1, Client acknowledges and agrees that, as between Client and Pingdar, all right, title and interest, including all copyright, trademark, patent, trade secret, intellectual property (including but not limited to algorithms and business processes) and other proprietary rights, arising out of or relating to the provision of the Software Services belong exclusively to Pingdar, other than the Client Data. Pingdar is hereby granted a royalty-free, fully-paid, worldwide, exclusive, transferable, sub-licensable, irrevocable and perpetual license to use or incorporate into its products and services any information, data, suggestions, enhancement requests, recommendations or other feedback provided by Client or its Authorized Users relating to the Software Services. All rights not expressly granted under this Agreement are reserved by Pingdar.
Pingdar warrants to Client that for a period of thirty (30) days following the initial purchase of the Software Services to Client that the Software Services will perform substantially in conformance with the Documentation. Pingdar does not warrant that the Software Services will meet all of Client’s requirements or that use of the Software Services will be uninterrupted, secure, or error-free. To the maximum extent permitted under applicable law, as Pingdar’s and its suppliers’ entire liability, and as Client’s sole and exclusive remedy for a breach of the foregoing warranty, Pingdar will, at its sole option and expense, promptly repair the Software Services. Each party warrants that: (i) it has the necessary corporate power and authority to enter into and perform this Agreement; (ii) this Agreement does not and will not conflict with any other agreement or understanding to which such party is a party or by which it is bound; and (iii) the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement.
THE SOFTWARE SERVICES, THE DOCUMENTATION AND ALL OTHER PRODUCTS AND SERVICES, INCLUDING THIRD PARTY HOSTING SERVICES, PROVIDED HEREUNDER ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10, PINGDAR HEREBY DISCLAIMS, ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PINGDAR SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES AS TO THE CONDITION, VALUE OR QUALITIES OF ANY SERVICES, INFORMATION OR MATERIALS PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, WHETHER ANY SUCH SERVICES, INFORMATION OR MATERIALS WILL BE ACCURATE, COMPLETE, SECURE, CONTINUOUS, UNINTERRUPTED, NON-INFRINGING OR ERROR-FREE, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY AS TO THE WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT, INCLUDING ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. PINGDAR ALSO SPECIFICALLY DISCLAIMS RESPONSIBILITY OF THIRD PARTY PRODUCTS AND SERVICES WITH WHICH CLIENT MAY UTILIZE THE SOFTWARE SERVICES, AND CLIENT SPECIFICALLY DISCLAIMS AND WAIVES ANY RIGHTS AND CLAIMS CLIENT MAY HAVE AGAINST PINGDAR WITH RESPECT TO SUCH THIRD PARTY PRODUCTS AND SERVICES, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
12. Limit of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) IN NO EVENT WILL PINGDAR OR ITS AFFILIATED ENTITIES HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR EXEMPLARY DAMAGES IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE SERVICES OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST OR CORRUPTED DATA, LOSS OF GOODWILL, WORK STOPPAGE, EQUIPMENT FAILURE OR MALFUNCTION, PERSONAL INJURY, PROPERTY DAMAGE OR ANY OTHER DAMAGES OR LOSSES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STATUTE, INDEMNITY OR OTHERWISE) UPON WHICH ANY SUCH LIABILITY IS BASED; AND (II) THE ENTIRE AGGREGATE LIABILITY OF PINGDAR AND ITS AFFILIATED ENTITIES AND THE SOLE REMEDY AVAILABLE TO THE CLIENT IN ANY CASE IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE SERVICES OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER SHALL BE LIMITED TO TERMINATION OF THIS AGREEMENT AND MONETARY DAMAGES THAT IN THE AGGREGATE MAY NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAYABLE OR PAID TO PINGDAR BY CLIENT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO ITS TERMINATION.
13. Intellectual Property Indemnification
Pingdar will indemnify and hold Client harmless from any third party claim brought against Client that the Software Services, as provided by Pingdar to Client under this Agreement and used or distributed within the scope of this Agreement, infringes or misappropriates any U.S. patent, copyright, trademark, trade secret, or other intellectual property rights of a third party, provided (i) use of the Software Services by Client is in conformity with the Agreement and Documentation; (ii) the infringement is not caused by modification or alteration of the Software Services or Documentation; and/or (iii) the infringement was not caused by a combination or use of the Software Services with products not supplied by Pingdar. Pingdar indemnification obligations are contingent upon Client: (i) promptly notifying Pingdar in writing of the claim; (ii) granting Pingdar sole control of the selection of counsel, defense, and settlement of the claim; and (iii) providing Pingdar with reasonable assistance, information and authority required for the defense and settlement of the claim. This Section states Pingdar’s entire liability (and shall be Client’s sole and exclusive remedy) with respect to indemnification to Client.