Pepperdata End User License Agreement (EULA)
PEPPERDATA SERVICE TERMS AND AGREEMENT
These Service Terms and Agreement, together with the Subscription (as defined in Section 2 below), are an agreement (collectively, this “Agreement”) between Pepperdata, Inc., a Delaware corporation (“Pepperdata”), and the individual or company identified in the Subscription (“Customer”).
Please note that this Agreement contains provisions in which Pepperdata disclaims warranties (see Section 16 below) and limits its liability (see Section 17 below) and provisions in which you agree to receipt of notices electronically (see Section 18(b) below). BY SIGNING UP TO ACCESS THE PEPPERDATA SERVICE YOU ARE REPRESENTING THAT YOU ARE OVER THE AGE OF 18, HAVE THE CAPACITY AND AUTHORITY TO ENTER INTO THIS AGREEMENT, AND ARE CONSENTING ON BEHALF OF YOURSELF AND/OR AS AN AUTHORIZED REPRESENTATIVE OF YOUR COMPANY, AS APPLICABLE, TO BE BOUND BY THIS AGREEMENT.
In consideration of the mutual promises contained in this Agreement, Pepperdata and Customer agree as follows:
Pepperdata runs a monitoring service intended for IT, operations and development teams which include the features and functionality described at the pepperdata.com.com website (the “Site”) on the Subscription Date, as such features and functionality may change from time to time as provided in Section 6 (the “Service”). Part of the Service is software that is downloaded and installed on the Customer’s computers being monitored and part of the Service is operated on Pepperdata’s hosting servers or those of its provider(s) to enable Customer and those of its employees who have been authorized by Customer (“Authorized Users”) to access and use the Service via the web. (If Customer is an individual subscribing for personal use, the term Authorized User shall refer to him or her.)
2. Subscription and Subscription Date.
As used in this Agreement, the term “Subscription” means (a) an online order for the Service completed and submitted by Customer through the Site and accepted by Pepperdata, (b) a written Customer purchase order for the Service accepted in writing by Pepperdata, (c) another written agreement for the Service executed by both Pepperdata and Customer, or (d) an order for the Service by Customer through an authorized Pepperdata reseller. “Subscription Date” refers to, as applicable, (i) the date Customer submits its online order through the Site, (ii) the date Customer issues its written purchase order, (iii) the date both Customer and Pepperdata have executed a written agreement, or (iv) the date that an authorized Pepperdata reseller has commenced the Services on behalf of Customer.
(a) This Agreement shall commence on the Subscription Date and, unless terminated early in accordance with Section 7 or 14 below, continue for (i) the number of months or year(s) specified in the Subscription as measured from the first day of the first calendar month after the Subscription Date, or (ii) if no period is specified in the Subscription, the calendar month following the first day of the first calendar month after the Subscription Date (the “Initial Period”). This Agreement shall automatically renew for successive renewal periods of the same duration of the Initial Period (each, a “Renewal Period”) unless one party gives notice of termination or non-renewal pursuant to this Section 3 (the Initial Period, and all such Renewal Periods, collectively, the “Service Period”).
(b) If Customer is using the Service under a Pro, Enterprise or other fee-based pricing planc(each, a “Paying Plan”), this Agreement shall automatically renew for successive renewal periods of the same duration of the Initial Period unless one party gives notice to the other of its intent not to renew at least 30 days prior to the expiration of the then pending term. If Customer is using the Service under a Free or non-paying Trial plan (each, a “Free Plan”), this Agreement will be deemed month-to-month and either party shall be free to not renew, or to terminate, this Agreement immediately upon notice to the other. (c)Notwithstanding the foregoing, if Customer has purchased the Services through an authorized Pepperdata reseller, the terms of Customer’s subscription with such reseller shall control with respect to the subscription term; provided, however, that if Pepperdata and such applicable reseller terminate their agreement, the Services will immediately terminate unless Customer enters into a new subscription with Pepperdata or another authorized reseller.
4. Pricing and Fees.
(a) Unless the parties agree otherwise in a separately executed written agreement for an Enterprise or other customized Paying Plan, fees for the Service (“Fees”) shall be based on the pricing published at the Site as of the Subscription Date for the Initial Period. All or certain of the Fees may be calculated on the basis of the number of hostsFor purposes of that determination and this Agreement, the term “host” refers to a concurrently monitored host/server, as determined by Pepperdata on a calendar month basis.
(b) Customer must be authorized to use the payment method Customer enters when creating a billing account. Customer authorizes Pepperdata to charge Customer for the Service using that payment method and for any paid feature of the Service that Customer chooses to sign up for or use during the Service Period of this Agreement. As indicated in the Subscription, Pepperdata may bill: (i) in advance; (ii) at the time of purchase; (iii) shortly after purchase; or (iv) on a recurring time- or usage-based basis.
(c) Customer must keep all information in Customer’s billing account current. Customer can access and modify Customer’s billing account information through the Site and may change its payment method at any time. If Customer notifies Pepperdata to stop using Customer’s previously designated payment method and fails to designate an alternative, Pepperdata may immediately suspend use and access to the Service. Any notice from Customer changing its billing account will not affect charges Pepperdata submits to Customer’s billing account before Pepperdata reasonably could act on Customer’s request.
(d) Pepperdata will notify Customer in advance, either through the Service or by email pursuant to Section 18(b), if Pepperdata changes Fees that would apply to Customer in a Renewal Period. If Customer does not agree to these changes, Customer must give notice of its intent to not renew the Agreement for such Renewal Period and stop using the Service on or before the effective date of termination. If Customer fails to give notice of non-renewal, Customer’s payment information on file will be charged at the new Fees thereafter.
(e) Payments for all accounts registered to pay via credit card are due the date the invoice is posted on Customer’s account. Payments for all accounts registered to pay via check, wire transfer or Automated Clearing House (ACH) are due within 30 days of the invoice date unless otherwise agreed-to by the parties in writing. If any payment is not made when due, Pepperdata may immediately suspend use and access to the Service.
(f) All Customer prepayments, if any, for the Service (monthly, yearly or otherwise) shall be deemed fully earned upon payment and are non-refundable; this includes accounts that are renewed.
(g) If this Agreement is terminated early by Customer pursuant to Section 7 or 14(a), or by Pepperdata pursuant to Section 14(b)(ii), Customer will not be obligated to pay the Fees following the effective date of termination. In all other cases, and regardless of whether Customer and its Authorized Users’ access or use the Service at the levels reflected in the Subscription or otherwise, Customer is responsible for paying all Fees through expiration of the Service Period.
(h) Any amount not paid when due will bear interest at the rate of 1.5% per month or the maximum rate permitted by applicable law, whichever is less, computed and compounded daily from the date due until the date paid. Further, in the event of any action by Pepperdata to collect any amount not paid when due, Customer will pay or r