Terms of Service

Effective Date: July 2nd, 2017

These Terms of Service constitute a legally binding agreement between you (“you” or “Subscriber”) and Duboce Labs, Inc., a Delaware Corporation (“we” or “pganalyze”) governing your use and access to pganalyze.com (“Site”) and the software and services made available through the Site (collectively the “Services”).

By clicking the “I Agree to the Terms of Service and Privacy Policy” box or (i) accessing or using any part of the Site or (ii) initiating any transaction on the Site, you agree to be bound by these Terms of Service.

These Terms of Service including provisions for binding arbitration. Upon acceptance of these Terms of Service and at any time prior to the termination of your account, the Services or these Terms of Service, you may opt-out of the binding arbitration provisions by sending an email to team@pganalyze.com. All other terms shall remain effective and binding on the parties.

Internet technology, and the applicable laws, rules and regulations change frequently. We reserve the right to make changes to these Terms of Service at any time. Continued access and/or use of the Site in any manner constitutes assent to any new Terms of Service that may be posted on the Site.

1. Definitions

The following terms shall be capitalized throughout this Agreement and shall be defined as follows:

a. Content. The term “Content” shall mean any and all text, data, software, graphics, information, images, Service Data or other materials submitted, uploaded, imported, communicated or exchanged to facilitate the provision of Services under this Agreement.

b. Software. The term “Software” refers to pganalyze’s proprietary software which integrates with Subscriber’s database to provide its PostgreSQL Performance Monitoring Services.

c. Service Data. The term “Service Data” means the PostgreSQL performance information data collected, analyzed and/or transmitted by Subscriber or pganalyze in connection with the Services under this Agreement.

d. Subscription Plan & Subscription Fees. The term “Subscription Plan” refers to the subscription selected and purchased by you on the Site, and “Subscription Fees” are the fees associated with the Services under the selected Subscription Plan.

2. Your pganalyze.com Account

To be eligible to use the Services, you must be at least 18 years of age, establish an online account and accept these Terms of Service. Users are entirely responsible for maintaining the confidentiality and security of their login information. You agree to accept responsibility for any and all activities that occur under your account. You must notify us immediately if you believe your password or username has been obtained, compromised, or used by any unauthorized person or entity. You may be held liable for losses incurred by us or any third party due to a breach of your account confidentiality and/or security. pganalyze will not be liable for any loss or damage arising from your failure to keep your login and account secure.

3. Services

Downloading the software will enable Subscriber to send PostgreSQL performance information to pganalyze. When transferring your data, we analyze the data and update the visualizations accordingly. We store the full snapshots that are sent to us. You can enable a special privacy mode in the collector to avoid sending sample queries to our service. We will never access your database directly or automatically update any of the collector scripts without your explicit consent.

In the event that Subscriber, when downloading the Software and commencing use of the Services, transfers statistical data that exceeds pganalyze’s capacity, pganalyze may need to disable or suspend the Services to address the data capacity issue. pganalyze will provide notice to Subscriber of the data capacity issue and prorate the applicable Subscription Fees for each day the Services are disabled.

4. Use Restrictions

Subscriber will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services. You will not make the Services available for the benefit of any third party, or sell, resell, license, sublicense, distribute, rent or lease the Services to any third party for any purpose, commercial or otherwise.

5. Licenses

a. Open Source License. pganalyze utilizes third party software to download and install its Software on Subscriber’s server. Subscriber’s use of the Services is subject to the terms and conditions of that Open Source License.

b. End User License Agreement. pganalyze hereby grants you a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable, revocable license during the Subscription Term to download, install, backup and utilize the Software for purposes of subscribing to pganalyze’s PostgreSQL performance monitoring Services. This EULA grants Subscriber the right to download only for the number of databases specified in your Subscription Plan. You acknowledge that pganalyze may from time to time issue upgraded versions of the Software, and may automatically electronically upgrade the version that you are using on your database. You consent to such automatic upgrading and agree that these Terms of Service will apply to all such upgrades.

c. Content License. Subscriber hereby grants to pganalyze a non-exclusive, royalty-free, worldwide right and license to collect, process, store, host, copy, transmit, display, modify, and create derivative works of any and all Content, in all media now known or hereinafter created, for purposes of providing the Services during the Subscription Term.

d. Subscriber Promotional License. You grant to pganalyze an unrestricted right and license to use your individual and/or company name, logo and/or relevant trademarks (“Properties”) to market and promote the Site and Services. This includes the worldwide right to copy, translate, broadcast, transmit, distribute, exhibit, perform, publish and display the Properties as incorporated into Pganalyze’s marketing and promotional materials.

i. Limited License: pganalyze is granted no other rights to the Properties and acknowledges that it shall not gain any proprietary interest in the Properties.

ii. Ownership of Promotional Materials: pganalyze shall be the exclusive owner of all right, title, and interest, including copyrights, in Pganalyze’s marketing and promotional materials.

iii. Opt-out: Upon account activation, Subscriber may immediately opt-out of this Section by providing email notice to: team@pganalyze.com.

iv. Termination. You may terminate Pganalyze’s license to use the Properties upon thirty (30) days prior written notice (email notice sufficient) to team@pganalyze.com.

6. Free and/or Beta Services.

From time to time, pganalyze may offer certain Beta and/or free Services. Any Beta or free Services offered on the site may be terminated by either party at any time. pganalyze further reserves, in its sole and absolute discretion, to disable, suspend, modify or impose fees on any Services, at any time. pganalyze will notify its users of any changes in fees for Services and users will be free to terminate their account prior to the imposition of any newly imposed fees.

7. Subscription Fees and Term.

pganalyze offers Services on a fee-subscription basis, as quoted in U.S. dollars or Euro on the Site, pursuant to the following terms:

a. Payment: You agree to provide us with your debit or credit card information prior to placing an order and you expressly authorize us to charge your debit or credit card on file for subscription term fees.

b. No Refunds: Fees will not be prorated upon cancellation and/or termination and all fees paid through the date of termination are nonrefundable.

c. Subscription Term: The term of the subscription will commence on the date the subscription is selected and shall continue for the periodic subscription term chosen by you on the Site (“Subscription Term”), and any renewal thereof, until terminated pursuant this Agreement.

8. Subscription Automatic Renewal

Your Subscription Will Renew Unless You Cancel: Subscriptions are for a pre-paid Subscription Term. YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW AT THE END OF EACH SUBSCRIPTION TERM FOR A SUBSEQUENT SUBSCRIPTION TERM. YOU ACKNOWLEDGE AND AGREE AS FOLLOWS:

a. Notice of Cancellation Required. You agree that we may automatically renew your subscription and charge your account on the last day of your Subscription Term (the “Renewal Date”), unless you cancel your subscription before the Renewal Date. pganalyze WILL AUTOMATICALLY RENEW YOUR SUBSCRIPTION ON THE RENEWAL DATE UNTIL YOU CANCEL YOUR SUBSCRIPTION OR PGANALYZE NO LONGER OFFERS THE SERVICES.

b. Payment And Price: The renewal payment is due on the Renewal Date and will automatically be charged to the same credit card that you used for the original subscription or the most recent renewal. THE RENEWAL PRICE WILL BE THE CURRENT RATE THEN IN EFFECT AT THE TIME OF RENEWAL. YOU WILL RECEIVE A NOTICE PRIOR TO RENEWAL OF ANY CHANGES IN SUBSCRIPTION PRICE OR THESE TERMS OF SERVICE.

c. How To Cancel Automatic Renewal: IF YOU DO NOT WANT TO RENEW, YOU MUST CANCEL YOUR SUBSCRIPTION BY EMAILING PGANALYZE AT team@pganalyze.com OR CANCELLING IN THE ONLINE INTERFACE

9. Termination

This Agreement may be terminated as follows:

a. Automatic Termination. This Agreement shall automatically terminate upon the bankruptcy or insolvency of either party.

b. Breach.

i. Either party may terminate this Agreement if the other party breaches any material provisions of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice of such breach.

ii. Notwithstanding the foregoing, pganalyze may immediately terminate this Agreement if Subscriber breaches any of the terms of Section 18.

c. For Convenience. Either party may terminate free Services at any time in their sole and absolute discretion.

10. Survival

The following Sections survive termination of these Terms of Service: Arbitration, Idea Submission License, Content License, Subscriber Promotional License, Confidentiality & Non-Disclosure, Disclaimer of Warranties, Indemnification, Limitation of Liability, Release and Governing Law.

11. Confidentiality & Non-Disclosure

Although utilization of the Services involves only the transfer of statistical information only, pganalyze may have access to Subscriber’s confidential and proprietary Content (“Confidential Information”). To the extent Confidential Information is inadvertently disclosed to pganalyze:

a. Non-Disclosure Obligation: pganalyze shall not to disclose any Confidential Information to any third party for any reason without your prior written consent. pganalyze will not disclose any Confidential Information to any person or entity other than its employees or agents who have a need to know about such information in order to provide the Services. You understand and agree that pganalyze’s employees shall be able to access Confidential Information to enable the delivery of the Services in accordance with these Terms of Service.

b. Required Disclosure: In the event pganalyze is requested or required by legal process to disclose any of the Confidential Information, pganalyze shall give you prompt notice so that you may seek a protective order or other appropriate relief prior to any such disclosure. In the event that such protective order is not obtained, pganalyze shall disclose only that portion of the Confidential Information that its legal counsel advises that it is legally required to disclose, and shall work with the owner of such Confidential Information to minimize the extent and effect.

c. Safeguarding Confidential Information. pganalyze agrees to protect the security of Confidential Information according to all applicable laws and regulations, by commercially-acceptable standards, and no less rigorously than it protects its own confidential information, but in no case less than reasonable care. pganalyze will implement, maintain and use appropriate administrative, technical and physical security measures to preserve the confidentiality, integrity and availability of the Confidential Information.

12. Removal of Subscriber Data

Upon termination of Subscriber’s account, pganalyze shall permanently delete all Subscriber Data from its servers. In addition, Subscriber may, at any time, delete Subscriber Data through the account settings.

13. Privacy

We respect your privacy and will only use personal information in accordance with our Privacy Policy.

14. Service Data Protection – Compliance with Applicable Laws

Subscriber shall comply with any and all applicable U.S. state and federal and international laws, rules and regulations governing the transmission and exchange of its Service Data between pganalyze and Subscriber.

15. Export Control

Any software, technology, or electronic transmission of information obtained from the Site originates in the United States and may be subject to United States export laws and regulations. Such software and technology may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports under U.S. law. You shall not access or use the Site or Services if you are located in any jurisdiction in which the provision of the Site, Services or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and you shall not provide access to the Site, Services or other components to any government, entity or individual located in any Prohibited Jurisdiction.  Software may not be downloaded or exported: (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading any software related to the Services, you represent that you are not located in, under the control of, or a national or resident of, any such country or on any such list.

16. Idea Submissions License

We consider any suggestions, ideas, proposals or other material submitted by users, whether solicited or unsolicited, (collectively, the "Material") to be non-confidential and non-proprietary. We shall not be liable for the disclosure, use or exploitation of such Material. You hereby grant to pganalyze a worldwide, non-exclusive, perpetual, irrevocable, royalty-free and transferable right and license to incorporate, use, publish and exploit the Material for any purpose whatsoever, commercial or otherwise, without compensation or accounting.

17. Objectionable Content

We are not responsible for, and do not endorse, any Content posted on the Site. We do not have any obligation to prescreen, monitor, edit or remove any Content. If your Content violates any of these Terms of Service, you bear legal responsibility for that Content. We shall not be liable for any damage or harm resulting from the uploading, posting or submission of any Content or your interactions with other users on the Site . We reserve the right, but have no obligation, to take any action to restrict or remove access to any Content that we deem, in our sole and absolute discretion, to be a violation of these Terms of Service.

18. Prohibited Conduct

In your use of the Site and Services, you may not:

19. Customer Support

Customer support is available by email at team@pganalzye.com to address any issues you may have regarding your use of the Site . Most concerns can be quickly resolved in this matter.

20. Mediation & Arbitration

Mediation. As to any claim or controversy with pganalyze arising out of or relating to the Site, Services and/or these Terms of Service (including its formation, interpretation, performance and breach), the parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. The form for initiating a request to mediate can be accessed at: American Arbitration Association If settlement is not reached within sixty (60) days after service of a written demand for mediation, any unresolved claim or controversy shall be resolved as follows:

Binding Arbitration. EXCEPT AS OTHERWISE STATED HEREIN, any claim or controversy with pganalyze arising out of or relating to the Site, Services and/or these Terms of Service (including its formation, interpretation, performance and breach) shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions. Any judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The Federal Arbitration Act shall govern the interpretation and enforcement of these Terms of Service.

ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ON AN INDIVIDUAL BASIS ONLY. THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE OR JOIN A CLASS ACTION OR PRIVATE ATTORNEY GENERAL ACTION, OR TO CONSOLIDATE THEIR ARBITRATION WITH OTHER ARBITRATIONS. YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JUDGE OR JURY. IF ANY PROVISION OF THIS ARBITRATION AGREEMENT IS FOUND UNENFORCEABLE, THE UNENFORCEABLE PROVISION SHALL BE SEVERED AND THE REMAINING PROVISIONS SHALL REMAIN ENFORCEABLE.

The AAA’s rules, as well as forms for initiating arbitration proceedings, are available at www.adr.org. When initiating a request to arbitrate with the AAA, you must also send a copy of the completed form to: Duboce Labs, Inc., 55 Montgomery St #617, San Francisco, CA 94105.

Exception – Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in small claims courts for disputes or claims within the scope of that court’s jurisdiction.

Arbitration Opt-Out. During your Subscription Term, you may opt-out of this arbitration provision by sending written notification (email sufficient) to: team@pganalyze.com. Once the Services, your account and/or these Terms of Service are terminated, Subscriber may not opt-out of the arbitration provisions set forth herein.

21. The Site's Intellectual Property

a. Copyright: The Site ’s logos, design, text, graphics, and other files, and the selection arrangement and organization thereof, are owned by PGANALYZE. You may not use such materials without permission. © 2012-17 Duboce Labs, Inc. ALL RIGHTS RESERVED.

b. Trademarks: The Site and its logos, page headers, custom graphics, button icons and scripts are trademarks or trade dress of pganalyze.

c. Ownership and Use: Unless otherwise stated herein, nothing in these Terms of Service or your use of the Site and Services gives you a right or license to use any of our copyrights, trade names, trademarks, service marks, logos, domain names, or any other intellectual property rights.

22. DISCLAIMER OF WARRANTIES

TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SITE AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS, AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE , INCLUDING ANY “BETA” RELEASES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PGANALYZE DOES NOT REPRESENT OR WARRANT THAT THE SITE , ITS SERVICES OR USE (I) WILL BE UNINTERRUPTED, TIMELY OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU USE. EXCEPT WHERE PROHIBITED BY LAW, PGANALYZE EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT AND WILL NOT BE LIABLE FOR YOUR USE OF OR RELIANCE ON THE SITE, INFORMATION, CONTENT, MATERIALS, PRODUCTS, AND SERVICES.

DISCLAIMER OF THIRD PARTY CONDUCT: PGANALYZE DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SITE, SOFTWARE OR SERVICES. PGANALYZE DOES NOT CONTROL ANY THIRD PARTY LINKS, SERVICES, GOODS, RESOURCES AND INFORMATION ON THE PLATFORM. TO THE EXTENT PERMITTED BY APPLICABLE LAW, PGANALYZE MAKES NO WARRANTIES REGARDING THIRD PARTY SERVICES, GOODS, RESOURCES AND INFORMATION INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT AND WILL NOT BE LIABLE FOR YOUR USE OF OR RELIANCE ON SUCH THIRD PARTY SERVICES, GOODS, RESOURCES OR INFORMATION.

23. LIMITATION OF LIABILITY

YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE ANSD SERVICES IS AT YOUR SOLE RISK. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PGANALYZE NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE CONTENT, SITE OR SERVICES WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, SECURITY BREACH, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE SITE OR ITS SERVICES, EVEN IF PGANALYZE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PGANALYZE’S AGGREGATE LIABILITY, OR THAT OF ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF, OR OF THE INABILITY TO USE, THE SITE OR SERVICES, EXCEED $1000.00 OR THE FEES PAID TO PGANALYZE IN THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO YOUR CLAIM, WHICHEVER IS GREATER.

24. INDEMNITY

To the maximum extent permitted by law, Subscriber agrees to indemnify, defend and hold harmless pganalyze, and its subsidiaries, affiliates, officers, directors, shareholders, employees, representatives, agents, volunteers, attorneys, managers, licensors, business partners and each of their respective successors and assigns (the “Indemnified Parties”) from and against all damages, losses, liabilities, claims, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with any claim, demand or action brought or asserted against any of the Indemnified Parties arising out of or relating to Subscriber’s (i) use of the Site and Services (ii) breach of these Terms of Service, or (iii) violation of any third party right, including without limitation any intellectual property right, publicity, property or privacy right.

25. RELEASE

With regard to your use of the Services, you hereby release pganalyze, and its subsidiaries, affiliates, officers, directors, shareholders, employees, representatives, agents, volunteers, attorneys, managers, licensors, business partners and each of their respective successors and assigns, from all claims, demands, causes of action, liabilities, legal fees and costs, and damages (actual or consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

26. Severability

The validity or unenforceability of any provision of these Terms of Service shall not affect the validity or enforceability of any other provision of these Terms of Service.

27. Modifications

Our employees, volunteers or agents are not authorized to vary our Terms of Service. No modification of these Terms of Service shall be effective unless it is in writing and either signed by an authorized representative of pganalyze or posted on the Site.

28. Choice of Law

These Terms of Service shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to or application of California’s conflict of law principles. The parties consent to the jurisdiction of the State of California, and venue in the County of San Francisco, with regard to any controversy or claim arising out of or relating to these Terms of Service, or the breach thereof.

29. Assignment

You shall not assign any of the rights or obligations under this Term of Service without the prior written consent pganalyze. pganalyze may at any time assign, transfer or subcontract any or all of its rights or obligations under these Terms of Service without your consent.

30. Successors and Assigns

These Terms of Service are binding on and inure to the benefit of the parties and their respective successors and permitted assigns.

31. No Waiver

No failure or delay by a party exercising any right, power or privilege under these Terms of Service will operate as a waiver thereof.

32. No Agency

No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Terms of Service.

33. Interpretation

Headings are for reference purposes only and do not limit the scope or extent of such section.

34. Notices

All notices required or permitted to be given under these Terms of Service will be in writing and delivered to: pganalyze at Duboce Labs, Inc., 55 New Montgomery St #617, San Francisco, CA 94105 or by email. All notices will be sent to you by email or will be conspicuously posted on the Site.

35. Entire Agreement

These Terms of Service comprise the entire agreement between the parties and supersede all prior or contemporaneous agreements, written or oral, between the parties regarding the subject matter contained herein.

36. Complaints - California Residents

If you are a California resident, in accordance with California Civil Code Section 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Affairs of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

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