The terms and conditions contained in this Agreement (“Agreement” or “TOS”) govern the relationship between Pingometer (“Pingometer” or “Us”) and the Customer (“Customer” or “You”). Both individuals and organizations may enter into this Agreement with Pingometer. If You are an organization, the representative who agrees to this Agreement represents that he or she has the authority to enter into this Agreement on the behalf of the organization, which shall be bound the terms of the Agreement.
By signing up for an account or enrolling in our services, You acknowledge that You are authorized to enter into this Agreement and agree to all terms and conditions contained herein.
1.1. Pingometer provides services that enable you to determine if your website is live and will notify you when your website is down. Pingometer provides its services “as is.” Pingometer reserves the right to modify and improve its services and features at any time.
1.2. In the event Pingometer needs to provide You with customer support, You agree that Pingometer shall have the right to access Your account for this purpose.
1.3. Pingometer may, in its sole and absolute discretion, limit or suspend its services for any reason. This limitation/suspension of service may be due to situations including, but not limited to, scheduled maintenance or Your violation of this Agreement,
1.4. Pingometer will contact You via email regarding any scheduled maintenance to its website and any limited suspensions of service that may result. It is Your responsibility to ensure that Your email address is current.
1.5. Pingometer’s services are contingent upon You providing Pingometer with the most up to date information. In the event that any of the information provided by You to Us has changed, it is Your responsibility to notify Us via email of the change.
2.1. You shall provide Pingometer with a valid email address and accurate, up to date payment information.
2.2. You agree that Your use of Pingometer is for the purpose of monitoring websites either owned and/or controlled by You. You acknowledge that Your use of Pingometer for any other purpose, such as to monitor the website of a third party, is an unauthorized use of Pingometer and may subject Your account to termination.
2.3. You agree that You will not use Pingometer for any illegal or improper purpose. Improper purposes include, but are not limited to, actions that cause harm to Us or other users. You agree to be solely liable for any damages incurred with any illegal or improper use of Pingometer. You agree that Pingometer may terminate Your account at any time if it deems Your use of our services to be illegal or improper.
2.4. You agree that You shall not permit any third party to access or use Pingometer. You further agree that You will not use Pingometer’s services on behalf of any third party.
2.5. You shall be solely responsible for the security of any user information and passwords associated with Your account.
2.6. You shall take commercially reasonable measures to prevent the unauthorized use of Pingometer’s services. You shall be responsible for all account activity conducted on Your behalf, whether authorized or unauthorized.
2.7. You agree that Pingometer retains all intellectual property rights in its services, methods, and software. You agree to refrain from using any marks belonging to Pingometer.
2.8. You agree to not disrupt, tamper with, or circumvent any protective mechanisms such as security measures or licenses. You agree to not attempt to access, copy, or modify any of Pingometer’s software.
2.9. In the event of a security breach or the discovery of unauthorized access of Your account, You shall notify Pingometer immediately.
2.10. You agree that Pingometer’s services are solely for the benefit of the Customer and You agree not to copy, duplicate, sell, or resell any aspect of Pingometer’s services.
3.2. You agree to permit Pingometer to store, transfer, and process any of Your information, including cookies, personal information, and non-personal information in the manner set forth in this Agreement and in the Policy.
3.3. You agree to permit Pingometer to use Your name/company name for marketing or promotional purposes on Pingometer or any other medium. To opt-out of such marketing and promotions, You must notify Us via email.
4.1. By enrolling in Pingometer’s services, You authorize Pingometer to charge Your credit card for fees connected with Pingometer’s services and for other fees, including, but not limited to taxes, renewal fees, and fees associated with extra services.
4.2. You agree to maintain current and valid billing and payment information. You agree that in the event that Pingometer is unable to process payment due to invalid or expired information, You shall not receive the benefit of Pingometer’s services until payment is received.
4.3. You acknowledge that Pingometer provides its services on a subscription basis and that accordingly, You will automatically be billed every month, for Pingometer’s services.
4.4. You agree that Your subscription will automatically renew on a monthly basis until You cancel Your subscription or contact Us to opt out of the automatic renewal.
4.5. You shall have the option to pre-pay for one full year of Pingometer’s services. In the event that You choose this payment option, Your subscription shall renew on a yearly basis until You cancel Your subscription or contact Us to opt out of the automatic renewal.
4.6. You shall have the right to cancel Your subscription to Pingometer’s services at any time. In the event that You cancel Your subscription prior to Your renewal date, You shall continue to receive the benefit of Pingometer’s services until Your renewal date. You shall not be entitled to a pro rata refund for the services provided from the date of Your cancellation until Your next billing date.
4.7. Pingometer shall reserve the right to change the prices it charges for its services and may make such changes at any time. Pingometer will provide You with reasonable notice via email regarding all changes in price. Such changes shall become effective the next billing cycle, unless otherwise specified in a notice to the Customer. Continued use of Pingometer’s services and failure to cancel Your subscription shall constitute acceptance of the new prices charged by Pingometer. If You do not accept these pricing changes, You must cancel Your subscription to avoid being charged the different rate. You shall continue to receive the benefit of Pingometer’s services until Your renewal date. You shall not be entitled to a pro rata refund for the services provided from the date of Your cancellation until Your next billing date.
5.1. You may cancel Your subscription at any time by logging into Your account and following the steps listed regarding cancellation.
5.2. Pingometer reserves the right to suspend or terminate Your subscription at any time and without prior notice if, in its sole and absolute discretion, it determines that You have breached any of the provisions of this Agreement. Such suspension or termination shall be effective immediately and Customer shall not receive a refund for the time remaining on Customer’s subscription.
6.1. Customer may cancel its subscription at any time pursuant to the provisions of Sections 4 & 5 of this Agreement.
6.2. Pursuant to Sections 4 & 5 of this Agreement, no refunds will be given for the period of time from the date of cancellation until the renewal date, unless required by law.
6.3. In the event that You experience any technical problems with Pingometer’s services, You should immediately contact Us via email or phone at the contact information listed on our “Contact Us” page. Within a reasonable time, Pingometer shall take remedial action to fix such technical problem, if caused by Pingometer. If Pingometer shall remedy the technical problem, such remedial action shall constitute Customer’s sole and exclusive remedy regarding any breach of this Agreement.
7.1. From time to time, Pingometer may provide You with analytical data regarding the website(s) that we have been contracted to monitor (“Customer Analytical Data”). This Customer Analytical data shall be owned by You. However, You may only use the Customer Analytical Data for internal business purposes (unless otherwise provided under this Agreement) and according to applicable law. All other data shall be owned by Pingometer
7.2. Pingometer shall have the right to use Customer Analytical Data in an aggregated and/or anonymous manner (“Aggregated Data”), provided such use will not reasonably lead to the identification of the Customer or the Customer’s website.
7.3. Pingometer shall retain the right to use Aggregated Data for the purpose of analysis and statistics.
7.5. Pingometer and its employees and contractors shall take all appropriate measures to secure against the unlawful processing of the Customer’s data.
7.6. Pingometer shall store and handle the Customer’s data in a manner consistent with industry security standards in order to minimize any risk of unauthorized use or access to the Customer’s data.
7.7. In the event the Pingometer experiences a security breach that may affect the Customer, Pingometer shall notify the Customer regarding such breach. However, it is the responsibility of the Customer to take any action necessary to mitigate the potential impact of such breach.
8.1. Periodically, Pingometer may, in its sole and absolute discretion, modify the terms of this Agreement. Any modifications and/or updates to this Agreement may be made by Pingometer without prior notice to You and are effective once posted to this page.
8.2. Your continued enrollment in Pingometer’s services shall constitute Your acknowledgement of and acceptance to the modifications and changes to this Agreement.
8.3. You acknowledge that it is Your responsibility to visit this page to ensure that You are aware of the most recent provisions of this Agreement. You further acknowledge that any modifications or updates made to this Agreement replace all previous versions and provisions of this Agreement.
9.1.Customer shall not transfer or assign any of its rights or obligations under this Agreement without prior written consent from Pingometer.
10.1. Either party may disclose any confidential information to the extent required by order of any court, tribunal, government, or regulatory authority with competent jurisdiction to order disclosure.
11.1. Pingometer gives no warranties regarding the correctness of the data it provides to Customer.
11.2. Pingometer gives no guarantees with respect to the continuous availability or response time of Pingometer’s services and website.
11.3. Pingometer gives no guarantees regarding the accuracy of the Consumer Analytical Data it provides Customer and the ability of Pingometer in detecting whether or not Customer’s website(s) are live.
11.4. Pingometer gives no guarantees regarding the time it will take for Pingometer to notify Customer regarding an interruption in their website(s)’ service, and cannot guarantee that it will be able to successfully notify You to inform You of any interruption.
11.5. Pingometer shall not be responsible for any loss or corruption of data or content. Customer acknowledges and agrees that it is solely responsible for maintaining a system to protect and back up its data.
11.6. In its discretion, Pingometer may use third party vendors and hosting partners to provide any necessary hardware, software, network, and other technology necessary to provide its services to Customer. Pingometer shall not be liable for any damages attributable to any third parties.
11.7. No implied conditions, or warranties, including those relating to quality and fitness for a particular purpose shall apply to Pingometer’s services, website, method, and software.
12.1. Pingometer and Customer represent and warrant that each party has full authority to enter into this Agreement.
12.2. Pingometer and Customer represent and warrant that each party will comply with all applicable laws and regulations regarding the use or provision of Pingometer’s services.
12.3. Customer represents and warrants that its website is lawful and does not promote any goods or services which are not lawful in the jurisdiction where made available. Customer represents and warrants that its website shall remain lawful and shall not promote any illegal goods or services, as described above, for the entire duration of Client’s subscription with Pingometer.
13.1. Neither party shall be liable for breach of this Agreement, other than Customer’s failure to pay for Pingometer’s services, to the extent that the breach was caused by a condition beyond the party’s reasonable control (such as natural disaster, act of war or terrorism, riot, governmental action, internet interruption, and telecommunications/power failure). The party responsible for such breach shall use reasonable efforts to mitigate the breach and resume performance as soon as reasonably practicable.
14.1. You expressly acknowledge and agree that Pingometer shall not be liable for any direct, indirect, incidental, special, consequential, liquidated, or exemplary damages, including, but not limited to damages for lost profits, goodwill, use, data, or other intangible losses resulting from (i) the use or inability to use Pingometer’s services; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services obtained through or from Pingometer’s website; (iii) unauthorized access to or changes of Your data; (iv) statements or conduct of any third party on Pingometer’s service or website; (v) any other matter relating to Pingometer’s services.
14.2. You agree that any decisions made by the Customer based on any data from Pingometer is the sole and exclusive responsibility of the Customer. Pingometer shall not be held liable for any damages that result from Customer’s decisions.
14.3.Pingometer’s liability to You for any damages or losses whether in tort, contract, negligence, or otherwise, shall not exceed that amount paid by Customer, if any, for Customer’s subscription during the twelve (12) months preceding the event that caused such loss.
15.1. You agree to indemnify, defend, and hold harmless Pingometer and its officers, directors, employees, and agents from any third party claims, liability, damages, and attorneys’ fees and costs arising from (i) Your use of Pingometer’s website and services; (ii) Your breach of this Agreement; (iii) the infringement of Your account by You or an unauthorized user; (iv) the violation of any of Pingometer’s intellectual property rights; and (v) the violation of the rights of any other person or entity.
16.1. This Agreement and any claims arising hereunder shall be governed by the laws of the State of Florida. Notwithstanding the foregoing, should Pingometer seek to enforce any infringement of its intellectual property rights, such dispute may be brought in the jurisdiction where such infringement has occurred or where Customer is incorporated.
17.1. This Agreement, along with any sales transaction and any documents incorporated by reference herein, shall constitute the entire agreement between the Customer and Pingometer and shall supersede any and all agreements, written or oral, concerning this matter.
17.2. To the extent that this Agreement conflicts with any document or terms provided to Customer in connection with any sales transaction, the document provided in connection with the sales transaction shall prevail over this Agreement.
17.3. This Agreement shall prevail over any additional terms regarding Pingometer’s services which have not been approved by Pingometer in writing.
17.4. If for any reason any of the provisions of this Agreement is held to be ineffective or unenforceable, such determination shall not affect the validity or enforceability of any other provision of this Agreement or the Agreement as a whole. If any part of this Agreement is held to be invalid, unenforceable, or unlawful, the remainder of this Agreement shall continue to be valid and enforceable to the fullest extent of the law.
17.5. This Agreement does not create an employer-employee relationship between Pingometer and the Customer. Furthermore, Pingometer shall not be deemed an agent of the Customer. Nothing in this Agreement is intended to create a partnership or joint venture between Pingometer and the Customer.
17.6. Nothing contained in this Agreement is intended to confer any rights upon any third party.
18.1. Requirements for Use of the Pingometer API.
In order to access or use the Pingometer API, you must be at least 18 years old and have legal capacity to enter binding contracts. Additionally, you may not be barred from accessing or using the Pingometer API under United States law or the laws applicable where you reside or from where you access or use the Pingometer API. Except as otherwise authorized by Pingometer, access to and use of the Pingometer API is restricted to authorized users of Pingometer accounts that are not terminated or suspended.
18.2. Pingometer API Limited License to You.
Subject to these API Terms, Pingometer grants you a limited, revocable, non-assignable, non-transferable, non-sublicensable, and non-exclusive right and license to access and use the Pingometer API; provided that you do not (and do not allow any third party to) sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Pingometer API or API Data or attempt to do so ("API License").
18.3. Pingometer API Limited License to Enterprise Customer.
Subject to these API Terms, Pingometer grants to Enterprise Customer a perpetual, irrevocable, non-assignable, non-transferable, non-sublicenseable, non-exclusive, worldwide license to copy, distribute, modify, create derivative works based on, perform, display, and otherwise use API Data for internal purposes only within Enterprise Customer in connection with developing and delivering Enterprise Customer products or services to Enterprise Customer's customers. For the purposes of this section, an Enterprise Customer's customer means a person or entity with whom Enterprise Customer has a contractual relationship.
18.4. Restrictions on Use and Storage of API Data.
Your license to API Data is limited to distributing API Data to end users on your website or application immediately upon receipt from a Pingometer API server. You may temporarily retain API Data for system performance or integrity purposes, but you may not retain any obtained API Data for longer than three days. You will not permit your users to access API Data in bulk. You may not present API Data (or permit API Data to be presented) so that it appears to be provided by a third party. You may not represent, expressly or by implication, that Pingometer endorses or has verified, the accuracy or completeness of any API Data.
18.5. API Tools Availability and Usage.
Pingometer will determine in its sole discretion the API Tools, documentation, methods, syntax, and results available in the Pingometer API. For example, Pingometer may make features available for use on its website that are not available, or not fully available, using any API Tools. Additionally, some API Tools may be restricted to certain account types or require special authorization. API Tools may be subject to usage limits that control how many requests the API will serve per minute and per month. Pingometer reserves the right to impose, modify, or terminate any such usage limits or restrictions at any time. Pingometer may make API Tools available under other conditions. For example, it may from time to time make certain API Tools available for free on a limited basis for evaluation and low-volume testing purposes. Please contact Pingometer Support with any inquiries about Pingometer API restrictions and usage limits.
18.6. Security and API Credentials.
Pingometer may, in its discretion, require the use of security protocols to access and use the Pingometer API. For example, certain API Tools may require submitted queries to include authentication credentials provided to you by Pingometer such as an API Key or API username ("API Credentials"). Pingometer may rely on the submission of queries that include your API Credentials to track account activity for account billing, usage limits, or other purposes. You are responsible for properly implementing and maintaining industry-standard security techniques for accessing and using the Pingometer API and to ensure the confidentiality of your API Credentials. You are fully responsible for all activity that occurs using your API Credentials whether or not authorized by you. Your account will be charged for all activity authenticated with your API Credentials even if you later determine the use was fraudulent. You will immediately notify Pingometer of any unauthorized use of your API Credentials or any other breach of security and take commercially reasonable corrective action at your expense to remedy such breach. Pingometer cannot, and will not, be liable for any loss or damage arising from your failure to comply with the requirements in this section.
18.7. Information and Access Not Guaranteed.
You acknowledge that the Pingometer API, and any particular API Tools or API Data, may not always be available, complete, or accurate, and that the Pingometer API may not always satisfy your anticipated or required level of performance. Further, you understand and acknowledge that some information available through the Pingometer API may be inaccurate, incomplete, or become unavailable, or may be different in scope or content from information available from other Pingometer services.
18.8. Termination or Modification of Pingometer API.
Pingometer reserves the right, without liability to you or any other third party, to modify or discontinue, temporarily or permanently, in whole or in part, the Pingometer API without notice. For example, Pingometer may change at any time: the availability or functionality of certain API Tools; the protocol or syntax required for submission of queries; or the format and content in which API Data is provided. You agree that Pingometer shall not be liable to you or any third party for any modification or termination of the Service.
19.1. Effect of Waiver.
The failure of Pingometer to exercise or enforce any right or provision of these API Terms will not constitute a waiver of such right or provision.
Any controversy or claim arising out of or relating to these API Terms, or the breach thereof, or your access to or use of the Pingometer API or API Data shall be resolved exclusively by arbitration administered by the American Arbitration Association ("AAA") and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by the AAA. You further agree that (1) the arbitration will be held in Seattle, Washington; (2) the arbitrator shall apply the laws of the State of Washington, without regard to its conflict of law principles to the contrary; (3) you waive any right to proceed in arbitration on a class or representative basis, arbitration can resolve only claims between you and Pingometer; (4) the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; and (5) all parts of this clause are severable, meaning that if any part is deemed unenforceable, the remainder of the clause will remain in effect and construed in accordance with its terms.
19.3. Governing Law.
The terms of this site will be governed and have the venue of the laws of the State of Florida without regard to its conflict of law principles to the contrary, except that the Arbitration provision above shall be governed by the Federal Arbitration Act.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these API Terms or your access to or use of the Pingometer API or API Data must be filed within 1 year after such claim or cause of action arose or be forever barred.
If any provision of these API Terms is found by a court of competent jurisdiction or arbitrator to be invalid, the parties nevertheless agree that the court or arbitrator should endeavor to give effect to the parties' intentions as reflected in the provision, and that the other provisions of these API Terms remain in full force and effect.
The section headings in these API Terms are for convenience only and have no legal or contractual effect.
Last Updated: June 25th 2015