Terms of Service
These Terms of Service (the “Agreement”) are entered into by the entity accepting this Agreement (“Customer” or “you”) and Ivinco Limited, a company incorporated and registered in England and Wales with company number 6851439 whose registered office is at Office 2, Derby House, 123 Watling Street, Gillingham, Kent ME7 2YY, United Kingdom (“HostedPMM”, “we,” “us,” or “our”) (each, a “Party”).
Percona Monitoring and Management® is a trademark of Percona LLC. Percona LLC is not a party to this agreement, except in cases when/if Percona LLC is a Customer.
This Agreement governs your access to and use of the HostedPMM Service (“the Services”). You accept and agree to the terms of this Agreement either by indicating acceptance when first registering your account to use the Services or executing an Order Form that references these terms. If you register for a free trial the applicable provisions of this Agreement also govern your access to such services. If you represent an organization, you represent and warrant that you are authorized to agree to this Agreement on behalf of your organization.
If you do not agree with this Agreement you may not use the Services.
This Agreement was last updated on 12 July 2022. It is effective between HostedPMM and Customer as of the date of Customer first registering to use the Services.
MODIFICATION OF THESE TERMS: From time to time we may update the terms of this Agreement. If you have an active HostedPMM account, we will notify you of updates via an email or a notification on the HostedPMM platform. Unless the notice states otherwise, the updated terms of this Agreement will become effective and binding for Customer within 15 days after the updated version of this agreement goes into effect. If Customer does not agree to the changes, Customer may terminate this Agreement in accordance with section “Termination” of this Agreement.
1. The Services
Service Description. HostedPMM is a cloud-based software platform which allows customers to provision, configure and manage servers with Percona Management and Monitoring® (“PMM”) – an open source database management and monitoring software package. HostedPMM will provide the Services to Customer substantially as set out on the HostedPMM websites, documentation and in this Agreement.
The Services may include features or services that have separate rules specific to the feature or service. You will comply with all laws, rules and regulations applicable to the use of the Services and any additional feature or service you use. You understand and agree that we may change, suspend or discontinue any part or all of the Services. We will notify you of any material change to or discontinuation of the Services by email or via our website.
Beta Release. The Services or some features of the Services may be in preview, testing, or “beta” phase (each, a “Beta Release”), for the purpose of evaluating performance, identifying defects and obtaining feedback. We will take reasonable measures to visually indicate Beta Release services and features in the user interface of the Services. Beta Release services may not be as reliable or as available as the Services. Customer uses Beta Release services and features in its sole discretion and at its own risk. We will not be liable for any damages in connection with your use of any Beta Release services or features. You are not required to use any Beta Release, and we have no obligation to release a final version of any Beta Release.
Support. The Services include email support with responses provided on a best-effort basis without any guaranteed service levels. We will use reasonable commercial efforts to correct at no additional charge any reproducible errors reported by Customer as soon as possible. We will review all requests for improvements and new functionality, but will have no obligation to provide any modifications to the Services. If Customer is entitled to receive specialized support services via an executed Order Form then such services will be provided in accordance with such agreed service levels. A failure to comply with any service level will not be construed to be a breach of this Agreement, but may give Customer the right to receive compensation as set out in such Order Form. Such compensation will be Customer’s sole remedy and HostedPMM’s sole liability as regards any non-compliance with any service levels.
Access to the Service. Customer may access and use the Services in accordance with these
Terms, and the documentation. Use of and access to the Services is permitted only by Customer, and if Customer is an organization, only by the personnel of Customer organization designated by Customer (“Users”). Customer may permit its independent contractors and consultants (“Contractors”) and affiliates to serve as Users provided that any use of the Services by each such Contractor or affiliate is solely for the benefit of Customer. Customer will be responsible for compliance by each User with all of the terms and conditions of this Agreement. Any data provided by a User that is uploaded to the Services is Customer Data for the purposes of this Agreement.
2. Registration and Your Account
To register to use the Services, you must create a username and password and provide us with the information requested in the registration process. You must provide complete and accurate information during the registration process and regularly update your information to ensure it remains accurate.
3. Customer Data Rights
“Customer Data” means any data of any type that is uploaded, delivered, ingested or otherwise entered by or on behalf of Customer to the Services. Customer will retain all right, title and interest in the Customer Data and any modifications made thereto in the course of the operation of the Services. Customer hereby grants to HostedPMM a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and display the Customer Data solely to the extent necessary to provide the services to Customer, or to prevent or address service or technical problems under this Agreement, or as may be required by law.
HostedPMM will classify all Customer Data as Confidential Information.
4. Acceptable Use and Customer Obligations
Without our prior written consent Customer will not (and will not permit any third party to):
- Copy, resell, rent, lease, license, distribute, provide access to, sublicense, or otherwise make available the Services to a third party (except as expressly set forth in section “Access to the Service”) or permit direct or indirect access to the Services by others in any way that violates this Agreement.
- Seek to obtain non-public APIs to the Services.
- Use any portion of the Services to create a competitive service, product or technology; or access the Services if Customer is a direct competitor of HostedPMM.
- Conduct any security testing of the Services including but not limited to, penetration testing; or breach or attempt to breach the security of the Services or the security of any network, computer or communications system, software application, or network or computing device accessible via the Services.
- Use, or encourage, promote, facilitate or instruct others to use the Services for any illegal, harmful, fraudulent, infringing or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, fraudulent, infringing or offensive.
Customer will ensure that Customer’s use of the Services and all Customer Data is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the export of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to HostedPMM that Customer has sufficient rights in the Customer Data to grant the rights granted to HostedPMM in section “Customer Data Rights” and that the Customer Data does not infringe or violate the intellectual property, publicity, privacy or other rights of any third party.
Customer will be responsible for providing all Customer Data to the Services in a format consistent with the requirements set forth in the documentation (or as otherwise specified by HostedPMM).
Customer will not store or process protected health information using the Services.
Customer will be responsible for its own devices, systems, applications, connections and software used to access the Services. Customer will be responsible for any its own costs incurred in relation to its use of the Services.
Customer will be responsible for ensuring that its authorized users maintain their usernames and passwords diligently and do not disclose them to third parties. Customer undertakes to inform HostedPMM without delay if any password has been revealed to a third party or if Customer has a reason to suspect misuse of a user name or password.
Customer is solely responsible for making appropriate backups of its data, and HostedPMM or its sub-processors will in no way be liable for any deletion of or failure to store any data of Customer maintained or transmitted to the Services.
5. Payment and Taxes.
Services Fees. We calculate and bill fees and charges as set out in the Order Form (if any is executed) or as described in the pricing information on our website (hostedpmm.com) (“Pricing Page”).
For monthly charges, we may bill Customer more frequently for fees accrued if we believe there is a risk of non-payment or if we suspect that Customer’s account is fraudulent.
We may increase or add new fees and charges for the Services by updating the Pricing Page unless otherwise set out in the Order Form (if any). In the event that we change the pricing for the Services the fees payable by Customer will increase or decrease in accordance with any such modification upon the date specified on the Pricing Page.
Late Payments. All fees are payable upon receipt and overdue thirty (30) days thereafter. We may charge Customer interest at the rate of 1% per month or the highest rate permitted by law on any overdue amounts.
Credit Card Payments. If Customer chooses monthly billing by credit card, Customer authorizes a recurring monthly charge to its credit card based on our current fee schedule for the Services as applicable. Customer will pay us the applicable fees and charges for use of the Services using its credit card. All amounts paid are non-refundable.
Taxes. All fees and charges payable by Customer are exclusive of applicable taxes and duties, including VAT and applicable sales tax. Customer will provide us any information we reasonably request to determine whether we are obligated to collect VAT from Customer, including Customer’s VAT identification number. If any deduction or withholding is required by law, Customer will notify us and will pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required.
6. Term and Termination
Term. The term of this Agreement commences when Customer registers and creates an account to use the Services and will remain in effect until terminated in accordance with this Agreement.
Termination. Customer may terminate this Agreement by terminating the Services under Customer’s account, and we may terminate this Agreement for any reason by providing Customer 30 days’ advance notice.
Suspension of Services. We may also suspend Customer access to the Services or terminate Customer account and this Agreement, immediately if:
- we change the way we provide or discontinue the Services;
- Customer is late in payment or otherwise in breach of this Agreement;
- we reasonably determine that Customer’s use of the Services poses a risk to the availability, functionality or security of the Services;
- we reasonably determine that Customer’s use of the Services may be unlawful; or
- Customer have ceased to operate or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding;
- Customer has violated the Acceptable Use and Customer Obligations set out in this Agreement.
If we suspend Customer’s right to access or use any portion or all of the Services, Customer remains responsible for all fees and charges Customer has incurred during the suspension and Customer will not be entitled to any credit or refund. We will use commercially reasonable efforts to restore Customer’s access to the Services promptly following resolution of the cause of the suspension.
We may suspend or terminate Customer’s access to or use of any Beta Release at any time and for any reason.
Effect of Termination. Upon termination of this Agreement all Customer’s rights under this Agreement immediately terminate; and Customer remains responsible for all fees and charges Customer has incurred up to and including the date of termination. We have no obligation to continue to store the data contained in the Services that Customer have terminated or after termination of this Agreement.
HostedPMM will use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration, or disclosure of Customer Data.
Each Party will keep in confidence all material and information received from the other Party and marked as confidential or which should be understood to be confidential (“Confidential Information”), and may not use such Confidential Information for any other purpose than those set forth in the Agreement. Confidential Information does not include information that: is or becomes publicly known other than through any act or omission of the receiving party; was in the other party’s lawful possession before the disclosure; is lawfully disclosed to the receiving party by a third party without restriction on disclosure; is independently developed by the receiving party, which independent development can be shown by written evidence; or is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
Each party will hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
Each party will take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
The obligations of confidentiality and non-use in this section will survive termination of this Agreement for a period of three (3) years.
9. Intellectual Property
HostedPMM Technology. Customer agrees that, as between HostedPMM and Customer, HostedPMM or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and documentation and any derivative works, modifications, or improvements of any of the foregoing, including any feedback that may be incorporated (collectively, “HostedPMM Technology”). Except for the express limited rights set forth in this Agreement, no right, title or interest in any HostedPMM Technology is granted to Customer. Further, Customer acknowledges that the Services is offered as an online, hosted solution, and that Customer has no right to obtain a copy of the underlying computer code for the Services. Notwithstanding anything to the contrary herein, we may freely use and incorporate into our products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any users of the Services relating to our products or services.
Service Data. “Service Data” means any usage logs and other information about Customer’s use of the Service. Service Data does not include Customer Data. Customer agrees that we may collect Service Data, and we may use Service Data to develop, improve, support, and operate our products and services during and after the term of this Agreement. This section does not give us the right to identify Customer as the source of any Service Data without written permission from Customer.
Marketing. We may use and display Customer’s name, logo, trademarks, and service marks on HostedPMM website and in our marketing materials in connection with identifying Customer as a customer of HostedPMM. Upon Customer’s written request, we will promptly remove any such marks from our website, and, to the extent commercially feasible, our marketing materials.
10. No Warranty
Service Warranty. HostedPMM warrants that the Services will operate in substantial conformity with the applicable documentation. In the event of a breach of this warranty, we will use commercially reasonable efforts to correct the reported non-conformity, at no charge to Customer, or if we determine such remedy to be impracticable, either party may terminate this Agreement. The foregoing will be Customer’s sole and exclusive remedy for any breach of the warranty set forth in this section. This warranty will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, or (ii) if the error was caused by misuse, unauthorized modifications, or third-party hardware, software, or services.
DISCLAIMER OF WARRANTIES. The Services, including Beta Release, including any deliverables, are provided on an “AS IS” and “AS AVAILABLE” basis and with no representation or warranty of any kind. Except to the extent prohibited by law, we disclaim any implied or statutory warranty, including any implied warranty of merchantability or fitness for a particular purpose, and any warranty arising out of any course of dealing or usage of trade.
11. Limitation of Liability.
HostedPMM will not be liable to Customer for any indirect, incidental, special, consequential or exemplary damages (including damages for loss of profits or data). We will not be responsible for any compensation, reimbursement or direct damages arising in connection with: (a) Customer’s inability to use the Services; (b) the cost of procurement of substitute goods or services; (c) any investments, expenditures or commitments by Customer in connection with this Agreement or Customer’s use of or access to the Services; or (d) any unauthorized access to, alteration of, or deletion, destruction, damage, loss or failure to store any of Customer’s content or other data.
Our aggregate liability under this Agreement will be limited to the amount Customer actually pay us under this agreement for the Services that gave rise to the claim during the 12 months preceding the claim.
Indemnification by HostedPMM. We will defend Customer from and against any claim by a third party alleging that the Services, when used as authorized under this Agreement, infringes a patent, copyright, or trademark and will indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by
HostedPMM (including reasonable attorneys’ fees) resulting from such claim. This section sets forth our sole liability and customer’s sole and exclusive remedy with respect to any claim of intellectual property infringement.
Indemnification by Customer. Customer will defend HostedPMM from and against any claim by a third party arising from or relating to any Customer Data or any product or service offered by Customer in connection with or related to the Services, and will indemnify and hold harmless HostedPMM from and against any damages and costs awarded against HostedPMM or
agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim.
Indemnification Procedures. In the event of a potential indemnity obligation under this section the indemnified party will: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Any indemnification obligation under this section will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.
13. General terms
Independent Contractors. The parties are independent contractors to one another. Nothing in this Agreement or otherwise will create an employer-employee, agency, joint venture or partnership relationship. No employee, agent, consultant or assistant of either party will be considered an agent of the other party.
Use of subprocessors. HostedPMM will be free to use subcontractors in the performance of its obligations and exercise of its rights under this Agreement. A list of subprocessors and subcontractors can be provided to Customer upon request.
Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to customer’s access to and use of the Services and supersedes all prior or contemporaneous oral or written agreements concerning this subject matter between you and us. All Customer documents, whether signed or unsigned, including purchase orders, will not be given any effect which is inconsistent with this Agreement unless this provision is specifically referred to and waived by HostedPMM in writing. In the event of discrepancy between this Agreement and the HostedPMM Order Form (if any), the text of the HostedPMM Order Form will prevail.
Governing Law. This Agreement will be governed in all respects by the laws of England and Wales.
Arbitration. Subject to each party’s right to seek injunctive relief for breach of the other party’s obligations related to confidential information or proprietary rights the parties agree that all disputes arising between them will be submitted to and exclusively, resolved by arbitration. If Customer is organized, resides or has an office in the United Kingdom, arbitration will be conducted in London, United Kingdom in accordance with the laws of England and Wales. If Customer is not organized in, does not reside in, and does not have an office in, the United Kingdom, arbitration will be conducted in London, United Kingdom in accordance with the Rules of Arbitration of the International Chamber of Commerce.
Force Majeure. HostedPMM will not be liable to Customer by reason of any failure in performance of this Agreement if the failure arises out of general failure of internet communications, acts of God, acts of Customer, acts of governmental authority, fires, strikes, delays in transportation, riots, terrorism or war, or any causes beyond the reasonable control of HostedPMM.
Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this section will be null and void.
Severability. In case any one or more of the provisions contained in this Agreement will, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect the other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in this Agreement will for any reason be held to be invalid, such as with respect to duration, geographical scope, activity or subject, it will be construed by limiting and reducing it to the minimum extent necessary, so as to be enforceable to the extent compatible with the applicable law as it will then appear.
Survival. Any terms and conditions that by their nature or otherwise reasonably should survive a cancellation or termination of this Agreement will also be deemed to survive.
Notices. We may provide any notice to you under this Agreement by posting a notice on the website for the applicable Services or sending a message to the email address associated with your account. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email. To give us notices under this Agreement, you must use a recognized postal or courier services who provide delivery confirmation, or email us at email@example.com with notice deemed given upon acknowledgement of receipt by a reply email.