Percona, LLC ("Percona") invites you (the "Customer") to use the Percona Advisors for MONYog software program ("Percona Advisors"), subject to this license agreement ("Agreement"). By downloading or using any aspect of Percona Advisors, you affirm that you have read and agree to all of the terms and conditions of this Agreement.
1. AGREEMENT - "Agreement" means this Percona Advisors for MONYog License, together with the copyright notice which appears when using the Percona Advisors in conjunction with MONYog Ultimate, which is incorporated herein by reference.
2. PERCONA ADVISORS LICENSE - Percona Advisors is proprietary to and copyrighted by Percona LLC or its affiliates, with all rights reserved. Percona grants to Customer a limited, non-exclusive, non-transferrable license to use one copy of Percona Advisors for MONYog during one 30-day free trial of MONYog Ultimate for monitoring a maximum of 50 servers, or during the term of a Percona Gold or Platinum level Support for MySQL contract between Customer and Percona. Absent these conditions, this license terminates and you agree to cease all use of, and uninstall, the program. Customer acknowledges that, from time to time, without prior notice, the Percona Advisors may change as Percona implements innovations or other changes.
3. CONDITIONS OF USE; OTHER LIMITATIONS.
3.1 Conditions of Use. Customer represents, warrants and covenants to Percona that Customer will not, directly or indirectly, use Percona Advisors: (a) for any purpose which is illegal or otherwise violates applicable local, state, national or international laws or regulations; (b) in a way that infringes, misappropriates or otherwise violates the privacy, copyright, patent, trade secret, trademark or other intellectual property, proprietary or personal rights of Percona or any third party.
3.2 Restrictions. Customer may not use Percona Advisors for any purpose except as expressly permitted in this Agreement. Without limiting the generality of the foregoing limitation, Customer will not, nor will Customer allow others to: (a) copy (other than any permitted backup copy) or modify Percona Advisors; (b) reverse engineer, decompile, disassemble, derive the source code of, create derivative works from or otherwise exploit Percona Advisors (except to the extent that such restriction is expressly prohibited by applicable law); (c) lease, license, use, make available or distribute all or any part of Percona Advisors to any third party; (d) distribute, sell, rent, lend, pledge, lease, sublicense, or otherwise, directly or indirectly, transfer rights or charge others for use of or access to Percona Advisors, whether directly or indirectly; (e) use Percona Advisors to operate in or as a time-sharing, outsourcing, service bureau, application service provider or managed service provider environment; or (f) remove, modify or obscure any copyright, trademark or other proprietary rights notices which appear in or on Percona Advisors.
4. PROPRIETARY RIGHTS - All title, ownership, and intellectual property rights in and to Percona Advisors, and any other materials used in connection with this Agreement and any work product created as part of this Agreement (including, without limitation, any changes thereto made at the suggestion of Customer) and any related documentation, including (without limitation) any copyrights, patents, trade secrets, computer code, programs, inventions, discoveries, know-how, methods, processes, designs, algorithms, formulae, patterns, and compilations ("Proprietary Information") are owned by Percona and its licensors, and nothing in this Agreement should be construed as transferring any aspects of such rights to Customer or any third party. Percona reserves any and all rights not expressly granted herein.
5. Warranty & Disclaimer - TO THE EXTENT PERMITTED BY APPLICABLE LAW, PERCONA MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER IN CONNECTION WITH PERCONA ADVISORS, ANY WORK PRODUCT OR OTHER PRODUCTS OR SERVICES PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT, ALL OF WHICH ARE PROVIDED ON AN "AS IS" BASIS. PERCONA EXPRESSLY DISCLAIMS, AND CUSTOMER EXPRESSLY WAIVES, ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION, AND ACCURACY OF INFORMATIONAL CONTENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PERCONA DOES NOT WARRANT RESULTS OR WARRANT THAT PERCONA ADVISORS OR ANY PRODUCT OR SERVICE WILL BE FREE FROM ERRORS, DEFECTS OR BUGS, OR THAT SUCH WILL NOT INTERFERE WITH OR DISRUPT ANY CUSTOMER SECURITY SYSTEM, NETWORK, SOFTWARE OR SYSTEM, OR THAT ANY PERFORMANCE DATA WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.
6. LIMITATION OF LIABILITY. - NOTWITHSTANDING ANYTHING ELSE HEREIN OR OTHERWISE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PERCONA LLC NOR ANY OF ITS AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, CONTRACTORS, SUPPLIERS, AGENTS OR REPRESENTATIVES, SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOST PROFIT, LOST DATA OR LOST SAVINGS (WHETHER RESULTING FROM IMPAIRED OR LOST DATA, SOFTWARE OR COMPUTER FAILURE OR ANY OTHER CAUSE) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, EVEN IF PERCONA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY OTHER CLAIM BY CUSTOMER OR FOR ANY THIRD PARTY CLAIM. PERCONA ADVISORS ARE NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE WHERE FAILURE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SIGNIFICANT PHYSICAL OR ENVIRONMENTAL DAMAGE, SUCH AS IN CONNECTION WITH AIRCRAFT OR OTHER MODES OF HUMAN MASS TRANSPORTATION, NUCLEAR OR CHEMICAL FACILITIES, OR CLASS III MEDICAL DESIGNATED RESOURCES UNDER THE U.S. FEDERAL FOOD, DRUG, AND COSMETIC ACT. THE PARTIES AGREE THAT THIS SECTION 6 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT PERCONA WOULD NOT PROCEED IN THE ABSENCE OF SUCH ALLOCATION. Customer acknowledges that it is Customer's sole responsibility at all times to protect and maintain an up-to-date and restorable backup of any and all servers, data, databases, files, utilities, software and other equipment and systems of Customer.
7.1 Interpretation. The headings used in this Agreement are for convenience only and shall in no case be considered in construing this Agreement. If any part of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision shall then be enforceable and enforced. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs.
7.2 Assignment. Subject to the following, all of the terms and conditions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and any permitted assigns of the parties. Customer shall not assign this Agreement or any of its rights or obligations hereunder (whether by operation of law or otherwise) without the prior written consent of Percona. Any attempt by Customer to assign this Agreement without Percona's prior written consent shall be null and void. There are no intended third party beneficiaries of this Agreement.
7.3 No Waiver; Limitations. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. To the extent permitted by applicable law, no action, regardless of form, arising out of this Agreement may be brought by Customer more than one (1) year after the cause of action has accrued.
7.4 Governing Law. This Agreement shall be governed in all respects (without regard to any conflict of law provisions) by the laws of the United States of America and the State of Delaware as such laws are applied to agreements entered into and to be performed entirely within the State of Delaware between residents of Delaware. To the extent exclusion is permissible, the terms of the United Nations Convention on the International Sale of Goods will not apply, even where adopted as part of the domestic law of the country whose laws govern this Agreement. If Customer is located in France or Quebec, Canada, the following clause applies: The parties hereby confirm that they have requested that this Agreement be drafted in English. Les parties contractantes confirment qu'elles ont exigé que le présent contrat et tous les documents associés soient redigés en anglais.
7.5 Dispute Resolution. Any claim, whether based on contract, tort or other legal theory (including, but not limited to, any claim of fraud or misrepresentation), arising out of or relating to this Agreement, including the interpretation, performance, breach or termination thereof, shall be exclusively and finally resolved by arbitration. The arbitration shall be conducted in the English language by a single arbitrator, and every person named on all lists of potential arbitrators, shall be a neutral and impartial lawyer with excellent academic and professional credentials who has practiced law for at least ten (10) years, with experience in the field of software development and distribution and intellectual property law, and (ii) who has had experience, and is generally available to serve, as an arbitrator. The arbitrator shall be bound by the provisions of this Agreement and base the decision on applicable law and judicial precedent, shall include in such decision the findings of fact and conclusions of law upon which the decision is based, and shall not grant any remedy or relief that a court could not grant under applicable law. The arbitrator's decision shall be final and binding upon the parties, and shall not be subject to appeal. Not-withstanding the foregoing, either party may enforce any judgment rendered by the arbitrator in any court of competent jurisdiction. In addition, the arbitrator shall have the right to issue equitable relief, including (without limitation) preliminary injunctive relief. Notwithstanding the foregoing, Percona shall be entitled to seek injunctive relief in any court of competent jurisdiction, at its discretion. If Customer resides or is organized in the United States or Canada, arbitration shall be conducted in Wilmington, Delaware, USA in accordance with the Commercial Arbitration Rules of the American Arbitration Association. If Customer nether resides nor is organized in the United States or Canada, arbitration shall be conducted in London, United Kingdom in accordance with the Rules of Arbitration of the International Chamber of Commerce. For the purposes of any arbitration or court action between the parties relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs.
7.6 Consent and Notices. Unless otherwise expressly indicated, any consent or authorization required under this Agreement shall be at the sole discretion of the party from whom such consent is required. Percona may provide any notice to Customer under this Agreement by sending a message to the email address then on record with Percona. Notices Percona provides by email will be effective when Percona sends the email. It is the responsibility of Customer to keep Customer's email address current. Customer will be deemed to have received any email sent to the email address then associated with the Customer when Percona sends the email, whether or not Customer actually receives the email. To give Percona notice under this Agreement, Customer must contact Percona as follows: by email transmission to email@example.com; or (ii) by personal delivery, overnight courier or registered or certified mail to the mailing address indicated on the "Contact" page on the Percona website. Percona may update the foregoing email or mailing address by posting revised contact information on the Percona website. Notices provided by personal delivery will be effective immediately. Notices provided to Percona by you via: (a) email transmission will be effective upon Percona acknowledgment of receipt by a reply email; (b) overnight courier will be effective one business day after they are sent; and (c) via registered or certified mail will be effective three business days after they are sent.
7.7 U.S. Government Restricted Rights; Export Law Assurances. If Percona Advisors is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense acquisitions) and 48 C.F.R. 2.101 and 10.210 (for non-Department of Defense acquisitions), the government's rights, including its rights to use, modify, reproduce, release, perform, display or disclose, will be subject in all respects to the license rights and restrictions provided in this Agreement. Customer acknowledges that Percona Advisors may be subject to export and import control laws, and agrees to comply fully with those laws in connection therewith. Customer agrees that Percona Advisors code is not being, or will not be, acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor will it be used for nuclear activities, chemical or biological weapons, or missile projects unless authorized by the U.S. government. Customer hereby certifies that Customer is not prohibited by the U.S. government from participating in export or re-export transactions.
7.8 Independent Contractors; Force Majeure. The parties are, and shall remain, independent contractors with respect to one another. Nothing in this Agreement shall create a partnership, joint venture, agency, franchise, or employment relationship between the parties. Percona shall not be liable to Customer by reason of any failure in performance of this Agreement if the failure arises out of the unavailability of communications facilities or energy sources, acts of God, acts of Customer, acts of governmental authority, fires, strikes, delays in transportation, riots, terrorism, war, or any other causes beyond the reasonable control of Percona.
7.9 Modifications. Percona may modify this Agreement (including any policies) at any time by posting a revised version on the Percona website or by otherwise notifying you in accordance with Section 7.6. Modified terms will become effective upon posting or, if Percona notifies you by email, as stated in the email message. By continuing to use any aspect of Percona Advisors after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Percona website regularly for modifications to this Agreement. Percona last modified this Agreement on the date listed at the beginning of this Agreement.
7.10 Entire Agreement. This Agreement comprises the entire agreement between the parties regarding the subject matter hereof and supersedes and merges all prior and contemporaneous proposals, understandings and all other agreements, oral and written, between the parties relating to the subject matter of this Agreement. This Agreement may be amended or modified only as provided in Section 7.9, or in a writing executed by both parties. All Customer documents, whether signed or unsigned, including purchase orders, shall not be given any effect which is inconsistent with this Agreement unless this provision is specifically referred to and waived by Percona in writing. A party's acceptance of any such document shall not be construed as an acceptance of provisions which are in any way in conflict or inconsistent with, or in addition to, this Agreement, unless such terms are separately and specifically accepted in writing by an authorized officer of each of the parties.
7.11 Print this Agreement. Percona encourages Customer to print a copy of this Agreement and the Registration Form on the date that the Registration Form is submitted.