These Pingometer LLC Service Terms (these “Service Terms”) are between Pingometer LLC, a Delaware limited liability company (“Pingometer”) and the Pingometer customer who submits an Order for Pingometer’s services (“Customer”).
Capitalized words in these Service Terms have special meanings given in the Section where they are first used or in Section 11 (Definitions).
Pingometer may modify these Services Terms at any time, but modifications are not effective for Orders that are in place prior to the modification until the Order renews or Customer adds new Services for the monitored Web Application. See Section 10.20 (Changes to Online Service Terms).
1. SERVICES. Pingometer agrees to provide Services for the Term on the terms and conditions stated in the Order and these Service Terms. Pingometer makes the following commitments:
1.1 Services. The Services will include those features listed in Customer’s Order and related graphical user interfaces and application programming interfaces. Pingometer will update the Services without additional charge so that they remain consistent with its generally available current offering that corresponds to the Services purchased.
1.2 Warranties. Pingometer warrants that (i) the Services will conform in all material respects with the description of the Services stated in the Order and with its general release user Documentation, and (ii) if Customer has configured the Services in accordance with the Documentation for a “best case build” or “common practice build” the data returned by the Services will be materially accurate (the “Services Warranty”). Pingometer warrants that it will provide the Services in compliance with the laws applicable to the provision of the Services.
1.3 Support. Pingometer will publish support Documentation online on its Site. Pingometer will provide live technical assistance via email, ticket, telephone and chat during its standard support hours. Pingometer’s standard support hours are published on its Site and may vary, but are currently 6:00 a.m. – 6:00 p.m. United States Central Time, Monday – Friday, excluding federal public holidays in the United States and Pingometer announced support holidays. Pingometer offers urgent issue support 24 x 7, but Customer must designate an off-hours support request as “emergency” or “urgent” to receive a response during off-hours.
1.4 Evaluation Use of the Services. Pingometer may provide Customer with access to its Services for Customer’s use in evaluating the Services for a potential purchase. Notwithstanding anything in the contrary in the Agreement, Services provided on an evaluation basis, whether provided at no charge or for a fee, are provided AS IS, without any service commitments, warranties or representations whatsoever. Pingometer has no obligation to provide support for any evaluation services. Any support that is provided is provided on an AS IS and AS AVAILABLE basis. Pingometer has no liability for any harm or damage arising out of or in connection with Customer’s use of the services during any evaluation period.
2. CUSTOMER INFORMATION. “Customer Information” is any data or information that Customer submits to Pingometer in connection with the Pingometer Services account or that is created or accessed by Customer or Pingometer by means of the Pingometer Services. Customer Information consists solely of: (i) information submitted to Pingometer to establish a Services account, receive support, and use the Services, such as business contact information of Customer’s personnel, payment information, and content of support requests, and (ii) data or information collected by means of the Services. Unless Customer elects to install Pingometer’s code snippet on the Customer’s Web server, the only information collected by Pingometer by means of the Services is information that is generally available to any public user of the Customer’s monitored Web Application(s). If Customer elects to install Pingometer’s code snippet on its Web server, then the Pingometer Service may also capture information that is captured by Web servers generally, such as visitor IP address, date and time of visit, and duration of visit. Customer Information is Customer’s Confidential Information covered by Section 10.3 (Confidential Information). As between Customer and Pingometer, Customer owns and retains ownership and all rights in Customer Information and Pingometer may use Customer Information only for the purpose of providing the Services, communicating with Customer and administering the Customer’s account, exercising its legal rights and remedies in connection with the Agreement, and as otherwise expressly permitted by Section 10.3 (Confidential Information). Pingometer will destroy Customer Information on Customer’s request following termination. “Customer Information” does not include system generated data about Customer’s use of the Services, such as user navigation on the Services interface and resource utilization. Pingometer may use system generated data for insights to help it improve general support and service. Customer authorizes Pingometer to de-identify and aggregate Customer Information with similar de-identified data of other customers and with anonymous data from public or private data sets and analyze the resulting data sets for insights to help it improve its services generally, provided that Pingometer’s method of de-identification must make it technically infeasible for any data to be re-identified to any of Customer’s customers or to Customer.
3. SECURITY AND PRIVACY.
3.1 Security. On Customer’s request, Pingometer will provide a description of the security measures it uses to protect Customer Information (the “Security Materials”). Pingometer will protect Customer Information using measures at least as stringent as those stated in the Security Materials for the Term and following the Term for so long as Pingometer retains any Customer Information. Customer acknowledges that Pingometer cannot guarantee complete security and that there is always a security risk involved in the use of an online service. Customer acknowledges that the measures described in the Security materials are reasonable and appropriate given the nature of the Customer Information and agrees that Pingometer is not responsible to Customer for any harm Customer suffers as a result of a security breach unless the breach resulted from Pingometer’s failure to maintain the security measures described in this Security Materials. Customer acknowledges that the Security Materials are Pingometer’s sensitive Confidential Information covered by the restrictions on use and disclosure stated in Section 10.3 (Confidential Information).
3.2 Privacy. Customer Information includes Personal Data as follows: (i) business contact information and Pingometer log in credentials of Customer’s personnel and their interactions with the Pingometer application or support portal; (ii) information volunteered by Customer’s personnel as part of a support request or other communication, and (iii) if Customer elects to install the Pingometer code snippet on its Web server, the IP address of visitors to the monitored Web Application and other data about their visit that is captured by Web servers generally, such as date and time of visit and duration of visit. Pingometer makes the following commitments with respect to Customer’s Personal Data: (i) Pingometer will provide Customer with access to the Personal Data as necessary for Customer to comply with applicable legal requirements for access, destruction, or modification of the Personal Data at the request of a data subject; and (ii) Pingometer will notify Customer in writing without undue delay if it discovers that any Personal Data has been accessed, used, disclosed, destroyed, or corrupted other than as permitted by the Agreement, will provide all information reasonably available to it regarding the reported event, will cooperate with Customer’s reasonable requests to mitigate and remediate the event. Customer acknowledges and agrees that Pingometer affiliates and services suppliers may be based outside of the geographic jurisdiction in which Customer’s data subjects are located. If legally required the parties will enter into good faith negotiations for such agreements as are necessary for the transfer of the personal data across national borders.
4. API(s), MOBILE APPLICATIONS.
The Pingometer mobile applications and any API or other software or computer instructions that Pingometer provides for Customer’s use on a Customer system or device are licensed to Customer on a non-exclusive, limited term basis for Customer’s use only in connection with the Pingometer Services as permitted by the Agreement, and subject to all of the restrictions and conditions stated in the Agreement. Pingometer may modify its API(s) from time to time .
5. INTEGRATION FEATURES
The Services include integration features for third-party services such as Slack, PagerDuty, and other communications services and tools. Customer acknowledges that Pingometer’s integration features may be unavailable or may not work properly if the service provider’s API is unavailable or if the service provider modifies its API or services in a way that impacts the Pingometer integration feature. Pingometer will use commercially reasonable efforts to modify its integration features to maintain compatibility with service provider’s APIs and services but may discontinue an integration feature without liability to Customer if there is a change in the service that creates an unreasonable cost or operational burden to Pingometer. Customer’s obligations under the Agreement, for fees and otherwise, are not conditioned on the continued availability of any integration features.
6. FEES AND PAYMENTS
6.1 Fees. Pingometer’s fees may be fixed amounts or rate-based usage charges. The initial fees are established by the Order and Pingometer may charge the fees at the times stated in the Order. Pingometer may not increase fees during the initial term of an Order but may increase fees for any renewal term to the amounts stated in Pingometer’s renewal invoice. Unless otherwise expressly stated in the Order: (i) Pingometer may charge the fees for the entire initial term of the Order on submission of the Order; (ii) fees are stated and must be paid in United States Dollars, and (iii) fees are non-refundable.
6.2 Sales Tax. The stated fees do not include any sales, use, VAT or like taxes (“Sales Tax”). Customer must pay any applicable Sales Tax that Pingometer is required to collect from Customer under applicable law.
6.3 Payments. Unless Customer has made other arrangements with Pingometer, Customer must authorize and maintain a current valid means for Pingometer to collect its fees for the Services via payment card at all times during the Term.
6.4 Late Payments. Pingometer may suspend or terminate Customer’s Services or the Agreement if Customer’s payment is overdue, including if Pingometer’s charge to Customer’s payment card or account is rejected. If Pingometer suspends Customer’s account for late payment, Customer must pay Pingometer’s reasonable reinstatement fee, not to exceed 5% of the Customer’s average monthly fee for the months prior to the suspension.
7. CUSTOMER OBLIGATIONS, RESTRICTIONS ON USE
7.1 Web Application. Customer will use the Services only to monitor the Web Application(s) identified in the Order.
7.2 Fees. Customer will pay fees when due for the Term. Customer will not use or attempt to use the Services in a way that undermines Pingometer’s ability to correctly calculate its fees.
7.3 No Service Provider Use or Resale. Customer may use the Services only in connection with its and its affiliates internal business purposes. Customer may not resell the Services or use the Services to provide services to others.
7.4 Customer’s Security Obligations. Customer will use reasonable security precautions in connection with its use of the Services. For example, Customer will use commercially reasonable efforts to protect its systems and data from malware, will require its users to establish reasonably secure passwords that are different than the passwords used for other online services, and will conduct anti-phishing training.
7.5 Authorized Users. Customer will authorize as Services users only the following: (i) its personnel, (ii) the personnel of Customer’s affiliates, and (iii) the personnel of Customer’s and its affiliates’ contractors for their use in supporting Customer’s or the affiliates’ internal business operations. Customer is solely responsible for deactivating or updating permissions and authentication credentials for Customer’s users, such as on the termination of employment of a user. Customer authorizes Pingometer to act on the instructions of a user who authenticates using active account credentials.
7.6 Compliance with Law, Acceptable Use. Customer will use the Services in compliance with applicable law and only to monitor Web applications that it operates in compliance with applicable law and industry acceptable use norms as described in the acceptable use policies of tier one public cloud infrastructure providers such as Amazon Web Services, Azure, and Google.
7.7 Representations and Warranties. Customer represents and warrants to Pingometer as of the effective date of each Order and on an ongoing basis that: (i) the information Customer submits about itself and Customer’s activities to establish a Services account with Pingometer and place an Order is true, correct, and complete, (ii) Customer has not been the target of any legal or regulatory investigations or proceedings in connection with Customer’s business activities, (iii) Customer has all necessary rights and authority to authorize Pingometer to use and process Customer Information as permitted by the Agreement, and (iv) Customer has and has made disclosures and obtained consents as required for Pingometer’s processing of Personal Data as permitted by the Agreement.
8. TERM, TERMINATION, SUSPENSION
8.1 Term. The initial term of each Order begins on Order submission and continues for the number of months stated in the Order, or for one (1) month if the Order does not state a specific number of months. Customer may renew an Order by paying Pingometer’s renewal fees.
8.2 Termination. Either party may terminate an Order or any or all Orders between the parties, on written notice if the other party is in material violation of any term of an Order or these Service Terms, provided that if the violation is curable the terminating party must first give the other party a written notice describing the violation in reasonable detail and at least ten (10) days to cure the violation.
8.3 Suspension. Pingometer may suspend Customer’s access to the Services and Customer Information during any period that Customer is in material breach of the Agreement or Customer’s access to the Services or Customer Information creates a material security vulnerability. Pingometer will give Customer at least two (2) business days’ advance notice of the suspension unless the suspension is made under emergency circumstances. Pingometer will reinstate Customer’s access to the Services when the grounds for suspension are cured unless Pingometer has already terminated the Agreement as described in this Section.
8.4 Surviving Provisions. The following sections survive expiration or earlier termination of the Agreement: Section 2 (Customer Information); Section 3 (Security and Privacy) for so long as Pingometer retains any Customer Information, Section 6 (Fees and Payment), Section 8 (Term, Termination and Suspension), Section 9 (Remedies, Disclaimers, Indemnification, Limitations), Section 10 (General Terms), and Section 11 (Definitions) and any other terms that by their nature are intended to survive expiration or termination.
9. REMEDIES, DISCLAIMERS, INDEMNIFICATION, LIMITATIONS
9.1 Warranty Remedy. If Pingometer fails to meet the Service Warranty, Pingometer will attempt to cure the failure or if it is unable to cure the failure through commercially reasonable efforts will refund the fees paid for the month during which the failure occurred. However, to be eligible for a warranty remedy under this section, Customer must give a written notice describing the failure no later than ten (10) days following the end of the month and cooperate with Pingometer’s reasonable efforts to cure the failure. The remedies stated in this Section are Customer’s sole and exclusive remedy for Pingometer’s breach of the Services Warranty.
9.2 No Other Warranty. Except as expressly stated in these Services Terms or an SLA, the Services are provided AS IS. Pingometer disclaims any implied warranties, such as a warranty of merchantability, fitness for a particular purpose, and non-infringement, and any representation or warranty that may arise through a course of dealing. Customer acknowledges that the use of the Service may not be uninterrupted, error free, or completely secure. Customer represents that Customer has not relied on any representation or warranty other than those stated in these Services Terms.
9.3 Indemnification. Pingometer shall defend Customer and its affiliates, and each of their respective employees, directors, members, managers, officers, owners, and agents (collectively the “Customer Indemnitees”) from any third-party claim asserting that Customer’s use of the Services as permitted by the Agreement infringes or misappropriates the copyright, patent, trade secret or other intellectual property right of the third party recognized in the United States (either under direct United States law or pursuant to an international treaty to which the United States is a party) (an “IP Claim”) and pay any resulting liability, judgment, loss, damage, cost and other expense (including reasonable attorneys’ fees) (“Losses”) awarded to the third party by a court of competent jurisdiction, or in the alternative shall settle the IP Claim at Pingometer’s expense, provided that Customer’s consent is required if the settlement does not fully resolve the IP Claim or requires Pingometer or any Customer Indemnitee to make a statement admitting culpability. Notwithstanding the foregoing, Pingometer shall not have any obligation to indemnify an IP Claim to the extent it results from (i) an unauthorized modification of the Services by any of the Customer Indemnitees or persons acting on their instruction, or (ii) an unauthorized combination or use of the Services by any of the Customer Indemnitees or persons acting on their instruction with any software, hardware or other technology, information or materials not provided by Pingometer unless the combination or use is reasonably contemplated by the nature of the Services or their authorized use. If an IP Claim is asserted, or in Pingometer’s reasonable opinion is reasonably probable of assertion, Pingometer may terminate the Agreement without liability except to refund prepaid fees for unused Services, provided that Pingometer must first have used commercially reasonable efforts to resolve the IP Claim or modify the Services to avoid the IP Claim without material diminishment of functionality. This Section states Customer’s sole and exclusive remedies and Pingometer sole and exclusive obligations with respect to claims of intellectual property infringement.
9.4 Limitation of Liability.
9.4.1 No Consequential, Indirect Damages. Except for claims arising from a party’s breach of Section 10.3 (Confidential Information), or claims based on the party’s intentional breach of the other party’s intellectual property rights, neither party nor its affiliates, licensors, suppliers, resellers, distributors or subcontractors is liable to the other for any lost profits, lost revenue, lost business opportunity, or any indirect, special, incidental, punitive, or consequential loss or damage of any kind arising in connection with this Agreement, or any loss or damage that could have been avoided by the claiming party’s reasonable mitigation, even if the party has been advised of or should be aware of the possibility of such damages. For avoidance of doubt, damages of the type described in this subsection that are awarded by a court or other tribunal to a third party and are covered under Section 9.3 (Indemnification) are not excluded by this subsection.
9.4.2 Maximum Liability. Notwithstanding anything to the contrary in this Agreement, excluding: (i) claims arising from a party’s gross negligence, recklessness, or intentional tort, (ii) claims arising from a party’s breach of Section 10.3 (Confidential Information), (iii) claims based on the party’s intentional infringement or misappropriation of the other party’s intellectual property rights, and (iv) payment obligations under Section 6 (Fees and Payments), the maximum aggregate liability of a party and its affiliates, licensors, suppliers, resellers, distributors, and subcontractors under or in connection with this Agreement for any type of damages, claims or obligations shall not exceed the amount of fees paid or payable by Customer under the Order giving rise to the claim for the 12 months preceding the event giving rise to the claim. For clarity, the maximum aggregate monetary limit stated in this subsection is not “per incident” but is an aggregate limitation applicable to all claims arising under or regarding this Agreement.
9.4.3 General. Customer acknowledges that Pingometer has set its fees and entered into the Order in reliance on the limitations of remedies and liability stated in these Terms, and that these limitations reflect an agreed allocation of risk between Customer and Pingometer . The limitations stated in this Section shall apply to any liability arising from any cause of action whatsoever, whether in contract, tort, commercial code, strict liability or otherwise, even if a limited remedy fails of its essential purpose. If these limitations as written are not permitted by applicable law, they shall apply to the extent permitted by applicable law.
10. GENERAL TERMS
10.1 Rights in Technology/Intellectual Property. Customer may not copy any part of the Services or Pingometer Technology except to the extent necessary to use the Services as permitted by the Agreement and shall not remove or obscure Pingometer’s name or any branding and proprietary notices. Customer may not reverse engineer or attempt to discover any underlying algorithm or method embodied by the Services or Pingometer’s other technology except to the extent applicable law permits such activity notwithstanding this limitation, and then on thirty (30) days advance written notice to Pingometer . Customer may not disclose to any third party any benchmarking or other test or evaluation Customer conducts on the Services. Customer may not use the Services or other Pingometer Technology for the purpose of creating a competing technology. Customer may not use the Services or other Pingometer Technology other than by means of the interface(s) provided by Pingometer . Customer may not modify or create derivative works of any Pingometer Technology. Except for rights expressly granted in this Agreement, Pingometer retains all right, title and interest in and to its Services, technology, and information and all related intellectual property rights. No rights in Intellectual Property may arise by implication or estoppel.
10.2 Feedback. Customer hereby licenses to Pingometer any feedback or suggestions that Customer may provide regarding the Services or Pingometer’s other existing or proposed products or services on a perpetual, irrevocable, royalty free, worldwide, unconditional, fully sublicensable and transferable basis, including the right to make, have made, use, sell, offer to sell, import, copy, display, perform, modify, distribute in modified or unmodified form, and commercialize any intellectual property, without accounting to Customer for revenues or profits.
10.3 Confidential Information. Neither party may use the other party's Confidential Information except in connection with the performance of its obligations under this Agreement or the permitted use of the Services, as applicable, the exercise of the party’s legal rights under this Agreement, or as may be otherwise permitted under this Agreement or required by law. Each party agrees not to disclose the other party’s Confidential Information to any third person except as follows: (i) to the party’s respective service providers, agents and representatives, provided that such service providers, agents or representatives are bound by written confidentiality measures that are at least as stringent as these terms; (ii) in response to a subpoena or other compulsory legal process, provided that each party agrees to give the other advance written notice of at least seven (7) days prior to disclosing the other party’s Confidential Information under this subparagraph (or prompt notice in advance of disclosure, if seven (7) days advance notice is not reasonably feasible), unless the law or a reasonable interpretation of it, forbids such notice, or (iii) as otherwise expressly permitted by the Agreement. On expiration or earlier termination of the Agreement, each party will return or destroy the other party’s Confidential Information. If a party believes it is not feasible to completely destroy the other party’s Confidential Information as required by this Section, it will give the other party written notice describing the Confidential Information and the circumstances that make destruction infeasible. All Confidential Information retained by each party following termination of the Agreement remains subject to the requirements of this Section. Each party will use commercially reasonable care to safeguard the other’s Confidential Information. Pingometer’s obligations to use reasonable care safeguard Customer Information is met by its use of the measures described in its Security Materials. Each of Customer and Pingometer is responsible for a breach of this Section by its service providers, agents and representatives to whom it has disclosed the other party’s Confidential Information.
10.4 Governing Law, Venue, Waiver of Jury Trial. The Order and these Services Terms are governed by and should be interpreted under the laws of the State of Texas and the United States of America, as applicable, without giving effect to any conflicts of law principles that would require the application of the law of a different jurisdiction. The parties expressly and irrevocably disclaim and waive the application of the United Nations Convention on Contracts for the International Sale of Good and the Uniform Computer Information Act. The parties agree that neither the Services nor the Pingometer Technology are “goods” covered by any State version of the Uniform Commercial Code. Each party agrees that it shall bring any lawsuit or other legal action related to this Agreement in the State or Federal courts sitting in Bexar County, Texas. Neither party shall dispute the personal jurisdiction of such courts, and each party waives any objection it may have as to the venue of such court. To the extent permitted by applicable law, each party waives the right to a trial by jury in respect of any litigation arising out of this Agreement or its subject matter. A party may not bring an action in relation to this Agreement more than two (2) years after the date that the cause of action accrued.
10.5 Notices. Customer’s notices must be submitted via ticket on the customer portal, and copied by electronic mail to support@Pingometer . Pingometer’s notices to Customer must be given to Customer’s primary account contact at the email address in the Pingometer portal. If Customer sends a notice of breach of the Agreement, a legal dispute , a legal claim, or other legal matter, Customer must copy Customer’s notice to support@Pingometer, and must also send Customer’s notice via first class United States mail to Pingometer’s physical address appearing on its Site on the day the notice is transmitted electronically. Pingometer’s legal notices to Customer must be copied via first class United States mail to Customer’s physical notice address, or if Customer’s physical address is outside of the United States, via a reputable and established international priority mail service on the date the notice is transmitted electronically. Notices are deemed given, received and effective as of the time transmitted by electronic mail, or if that time does not fall on a business day, as of the beginning of the first business day following the time transmitted. Notices must be given in the English language. A party may change its address for notice by giving notice in the manner stated in this Section.
10.6 Informal Dispute Resolution. Except for a request for injunctive relief as permitted by Section 10.7 (Injunctive Relief), each party agrees that it will not file a lawsuit or other legal action in connection with the Services, any Order, or these Services Terms, unless it has first given the other party written notice of the dispute and attempted to resolve the dispute through good faith negotiation.
10.7 Injunctive Relief. Notwithstanding anything in this Agreement to the contrary, this Agreement does not prohibit, condition or delay a party’s right to seek injunctive relief in any court of competent jurisdiction to address the other party’s infringement or misappropriation of its intellectual property, or the other party’s breach of its confidentiality obligations under this Agreement.
10.8 Export Compliance. The Services may be subject to export laws and regulations of the United States and other jurisdictions. Customer may not permit users to access or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation, or in a manner that causes Pingometer to be in violation of U.S. export laws, even if the use is permitted by the laws applicable to Customer or Customer’s user or customer. Each party represents that it is not on any restricted persons list maintained by the U.S., Canada, or any member of the European Union.
10.9 Anti-Corruption. Each party represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from the other’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If either party learns of any violation of the above restriction, it will promptly notify the other party.
10.10 Force Majeure. Except for Customer’s payment obligations, neither party is in violation of the Agreement if the failure to perform is due to an event beyond that party’s reasonable control, such as a significant failure of the power grid or Internet, denial of service attacks, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other acts or events for which precautions are not generally taken in the industry.
10.11 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Orders), without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.12 Publicity. Each party will consider the other’s requests to participate in the development of product whitepapers, testimonials for Web publication, and other like materials for publication, provided that neither party may issue any press release or other publicity regarding this Agreement or the relationship or transactions contemplated by this Agreement without the prior review and consent of the other party. Customer agrees that Pingometer may identify Customer as its customer on its sales presentations and its website where it identifies its customers generally, and Pingometer agrees that Customer may identify it as Customer’s service provider on Customer’s website. Each party may use the other party’s trade or service marks in connection with authorized use of its name and other approved activities. Each party shall use the other’s trademarks subject to the other party’s reasonable trademark usage guidelines that are communicated to the party from time to time.
10.13 Relationship of the Parties. The parties are independent contractors. Neither party is the agent of the other, and neither party is authorized to make any representations, contract, or commitment on behalf of the other. The use of the words “partner” or “partnership” in this Agreement or otherwise refers only to a business relationship, and does not create or reflect any legal partnership, joint venture, or other fiduciary or other special relationship between the persons described as partners. The parties do not agree to any exclusivity in regards to the subject matter of this Agreement and each party is free to contract with third parties, including competitors of the other party, for transactions of the type covered by this Agreement in any market, worldwide.
10.14 Interpretations. In calculating any period of time under this Agreement, the day of the act, event or default from which the designated period of time begins to run is not to be included. The term “person” refers to any legal person, and may mean a natural person (individual), a legally created person (such as an entity, trustee, or executor), or an entity (such as a corporation, partnership, or limited liability company). The word “personnel” refers to a person’s employees and individual contractors who are under the person’s direct supervision. The word “affiliate” refers to an individual or entity that controls, is controlled by, or is under common control with the person referred to, where control means ownership of the majority of voting interests of an entity or the right to control the policies of the entity by means of a controlling number of seats on the entity’s governing body. The use of the word “including” should be read to mean “including, without limitation.” All references to monetary amounts mean United States Dollars. The term “parties,” either in lower- or upper-case form, refers to the signatories to this Agreement unless expressly stated as a “third party.” For notice purposes, the words “business day,” “business hours,” or the like means Monday – Friday, 7:00 a.m. – 7:00 p.m., United States Eastern time, excluding federal public holidays in the United States. A reference to “day” shall mean a calendar day, unless expressly designated as a “business” day. All software and other technology provided for Customer’s use is licensed and not sold; any references to a sale or purchase of software or other technology means the sale or purchase of a subscription service. Any requirement in this Agreement that a statement be written, in writing, or a like requirement is satisfied by an email or other digital form of writing unless expressly stated otherwise. Nouns stated in the singular imply the plural as indicated by the context, and pronouns that are gender specific refer to either gender. The Section captions in this Agreement are for convenience only; they are not part of this Agreement and may not be used to interpret the terms of this Agreement.
10.15 Third-Party Beneficiaries. There are no other third-party beneficiaries under this Agreement.
10.16 Severability. In the event one or more of the terms of this Agreement are adjudicated invalid, illegal, or unenforceable, the adjudicating body may either interpret this Agreement as if such terms had not been included, or may reform such terms to the limited extent necessary to make them valid, legal or enforceable, consistent with the economic and legal incentives underlying the Agreement.
10.17 Changes to the Services. Customer agrees that Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Pingometer regarding future functionality or features. Customer acknowledges that Pingometer may modify or suspend any of its Services offerings at any time. If a modification or suspension materially and adversely affects Customer’s use of the Services, Customer may terminate the Agreement by giving written notice of the change no later than (30) days following the date of the change and receive a refund of any prepaid fees as Customer’s sole and exclusive remedy.
10.18 General Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
10.19 Representation by Individual Submitting the Order. The individual submitting the Order represents that: (i) if the individual submits the Order on his or her own behalf (including as a sole proprietor), the individual is old enough to enter into contracts and otherwise has the legal capacity to enter into contracts under applicable law; or (ii) if the individual submits the Order on behalf of a company or other legal entity, the individual has the legal power and authority to bind that entity to the Order and these Service Terms.
10.20 Changes to Online Service Terms. Pingometer may amend these Services Terms at any time in its sole discretion. Any amendment will become effective as to Customer’s Order on the first renewal of the Order that follows the publication of the amendment by at least thirty (30) days. If the amendment materially and adversely impacts Customer’s use of the Services, Customer may terminate the Agreement by giving written notice no later than thirty (30) days following the date the amendment is published and receive a refund of prepaid fees for unused Services as Customer’s sole and exclusive remedy.
10.21 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Customer and Pingometer regarding Customer’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of these Service Terms or an Order will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any preprinted term or condition stated in any business form is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order, (2) these Services Terms, and (3) the Documentation. Customer’s use of the Services, both during any free use period and Customer’s Order Term, is subject to all of the terms, conditions, and restrictions stated in Customer’s Order and these Service Terms, and any restrictions stated on a page on the Site that is part of Customer’s Order.
11 DEFINITIONS. These terms, when capitalized, have the meanings stated:
Agreement means these Service Terms and the Order, collectively.
Confidential Information means any non-public information that a party (the “recipient”) receives from or learns about the other party (the “discloser”) or the discloser’s licensors or suppliers as a result of activities contemplated by the Agreement that the recipient should reasonably understand to be confidential, given the nature of the information or the circumstances of its disclosure, but not including any information that is developed by the recipient independently and without reference to the discloser’s Confidential Information, or information that is or becomes available to recipient from a source other than the discloser so long as the source did not, to recipient’s knowledge, acquire the information as a result of a violation of a duty of confidentiality to the discloser. Customer’s Confidential Information includes Customer Information. Pingometer’s Confidential Information includes pricing and service terms, product roadmap information, security information, and non-public technology.
Customer Information has the meaning given in Section 2 (Customer Information).
Documentation means Pingometer’s general release user and administration guides, FAQs, Whitepapers and other materials designed to explain the use of the Services, but not including any marketing materials or publicity.
Order means either of the following that incorporates or references these Service Terms and has been accepted by Pingometer : (i) an order submitted by Customer on the Site using Pingometer’s online ordering process that references a service plan published on the Site; or (ii) an order form prepared by Pingometer for Customer’s signature that that describes the features of the Pingometer Services, the related fees, initial term and other transactions details, either in the Order or by reference to a plan description published on the Site. If there are multiple Orders for Services covering a Web Application those Orders are considered a single “Order” as that term is used in these Service Terms. Acceptance by Pingometer may be made by any reasonable means including processing of Customer’s payment, activation of the Services, or signature on the submitted order. For clarity a transaction document that includes the information described in this definition is an “Order” for purposes of this Agreement even if styled “Statement of Work,” “Order Form,” “Proposal,” or with other names.
Personal Data means any information about a natural person that is identified or identifiable to the natural person, either alone or in combination with other information, that Pingometer will process or have access to as part of providing the Services, including any such information that is created by means of the Services.
Malware means any virus, malware, spyware, ransomware, adware, or other code, circuitry or other technological means that is designed to interrupt the normal use of the Services or the systems on which any part of the Services are installed or with which the interoperate, destroy or corrupt any data, make data unavailable, or covertly transmit data or information.
Services means Pingometer’s monitoring and other services described in an Order and Support.
Site means https://uptime.com, or any other website operated by Pingometer for the purpose of offering or providing Services, including any subdomains.
Support means the use of the Documentation, and any technical support.
Term means the initial term and any renewal terms, collectively.
Pingometer Technology means (i) the Services, mobile applications, user and programming interfaces and all other information, materials, and technology provided by Pingometer for Customer’s use as part of or in connection with the Services, or used by Pingometer to provide the Services, (ii) all documentation related to any of the foregoing, (iii) all modifications and derivative works to or of any of the foregoing, and (iv) all related rights in intellectual property, worldwide.
Web Application means Customer’s website or other Web-accessible application described in an Order.
Last Updated: May 7th, 2021