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Terms and Conditions for Java-Monitor Service
By using the Services, you or if applicable the company or entity you represent ("the Customer") agree to be bound by these terms and conditions (referred to as the "Agreement"). These terms and conditions shall also apply to you if you obtain the Services through a reseller, or some other distribution or sales channel.
- The services provided via java-monitor.com (or such other website or delivery channel through which they may be made available from time to time) (the "Services") are operated by kjkoster.org ("Provider"), registered in The Netherlands with Chamber of Commerce number 27289236, a place of business at Timorstraat 17, 2612 EH, Delft, The Netherlands, and VAT number NL1640.69.331.B01.
- When registering to use the Services the Customer must provide correct name and/or address details as required by Provider.
- It is the Customer's responsibility to ensure that all user ID, passwords and login details used to access the Services are kept confidential and secure. The Customer must notify the Provider immediately in case of any suspected unauthorised use of the Services or such details. The Provider excludes all liability for any such unauthorised activity and any interruption/malfunction to the Services caused thereby.
Subject to the provisions of this Agreement, the Services are as follows:
- Gathering of data from the Customer's application servers that have the Probe Software properly installed;
- Creation of reports from such data (e.g., performance data, overviews, graphics and outage notifications);
- Use of the java-monitor user interface in order to check remotely on server status;
- Alerts or alarms for specific situations indicated by Provider e.g., server going offline; and/or
- As otherwise agreed in writing or published online by Provider from time to time.
- The Services include free Services and Services subject to payment of Fees. The available services and applicable Fees are as set out on the Provider's website from time to time.
- The Services shall commence upon installation of the Probe Software, Services subject to Fees shall commence from the moment that Customer activates such Services through the user interface and may be activated and deactivated by the Customer at any time.
- It is the Customer's responsibility to ensure that each required server is compatible with the Services, and the Probe Software is functioning correctly. The Provider excludes all liability arising due to any Services not being performed as a result of the server not being compatible with the Services or properly registered and set up with the Probe Software.
- The Provider reserves the right at any time to discontinue, improve, correct or otherwise modify or replace all or any of the Services.
- In order to use the Services, the Customer must install software specified by Provider (the "Probe Software") on each server.
- The Probe Software currently used for the Service is open source software and its use is subject to the applicable licence terms (e.g., BSD).
- The Customer must review the code, license terms and characteristics of the Probe Software prior to using the Services in order to determine its suitability and any issues that it might cause on the Customer's systems.
- The Provider does not offer a support service, though Customer may use the public forum on the Provider's website in order to ask questions and interact with other users. The Provider may but is not obliged to review or moderate such forum and Customer uses it at Customer's own risk.
- The Provider excludes all liability for any loss or corruption of data or interference with Customer's systems as a result of any use or installation of the Probe Software or the Services as well as in connection with any information exchanged or published in the public forum.
- The Probe Software and user interface are the only permitted means of access to the Services and the Provider's systems. Use of any other access shall entitle the Provider immediately to terminate this Agreement.
Use of Data
- The Customer acknowledges that all data gathered by the Probe Software and received by Provider's systems (the "Data") is owned by Provider.
- The Customer may access Data using the user interface but Data will not be returned to the Customer whether by way of export, API access or any other method.
- The Customer's Data will not be provided as is to any third party except with the Customer's consent. The Customer is responsible for any third party access granted using Customer's access details e.g., making the Data visible to third parties or posting Data on any forum.
- The Provider will delete Data if requested to do so by the Customer.
- The Provider will use its best efforts to store the Data. However, the Customer acknowledges that Customer uses the Services at the Customer's own risk and if any Data is lost or corrupted then the Provider excludes all liability to Provider.
- The Customer acknowledges that Data not referring to or identifying the Customer or Customer's servers may be aggregated into reports which may be disclosed to third parties.
- In addition to the above provisions, the parties shall comply with all applicable laws regarding processing of personal data. However, the Customer shall not use the Services to store or process personal data and the Provider shall not be a Data Processor for Customer under applicable data protection laws.
Intellectual Property Rights
- The Customer acknowledges and agrees that it will not own or acquire ownership of any intellectual property rights in or relating to the Services, the Probe Software or the Data, or items created in performing the Services, and that it will have no rights in or to the Services, Probe Software or Data other than the rights expressly granted by this Agreement. In particular the central server software is proprietary to the Provider and nothing in this Agreement shall transfer or grant to Customer any rights over it, other than the rights to receive the Services as expressly set out herein.
- The central server software and other items and materials used in the provision of the Services (except for the Probe Software and the Data) are confidential information of the Provider. The Customer must not: (a) disclose them to any third party; (b) use them for any other purpose than receiving the Services; (c) modify, translate, reverse engineer, decompile, disassemble them (except to the extent applicable laws specifically prohibit such restriction); or (d) create derivative works or services based on them.
Payment for the Services
- The prices for the Services ("Fees") shall be as quoted on the Provider's website from time to time (except in cases of obvious error) or as agreed in writing by the Provider. Where indicated, expenses e.g, for SMS alerts, may be added to the Fees payable by the Customer.
- Fees are payable by the Customer from the moment that Customer activates a Fee paying Service and shall be charged for the actual time during which Customer maintains such Service activated. Billing shall be in one hour increments for each hour or part of an hour during which the applicable Services are activated, or as otherwise set out on Provider's website or agreed separately in writing.
- Fees are non-refundable in whole or in part, unless the Provider cancels the Services or this Agreement in which case any pre-paid Fees for any unused Services up to the effective date of termination shall be refunded.
- If the Fees are not paid in full by the due date, the Provider may suspend provision of the Services.
- Any sums payable by the Customer to the Provider under this Agreement are exclusive of value added tax or any similar taxes, levies or duties, which will be added to such sums and be payable by the Customer at the applicable rate.
- All sums payable by the Customer to the Provider must be made without deduction, set off or counterclaim.
The Customer warrants that:
- it is able to enter into and perform its obligations under this Agreement;
- the servers will be maintained and serviced and at all times in good working order and free from viruses, worms, Trojans and in general malware or spyware; and
- the Customer will use the Services and conduct its business in accordance with all applicable laws.
- The Provider warrants that the Services will be provided using reasonable care and skill.
All other warranties, whether express or implied are hereby excluded to the maximum extent permitted by law. In particular, the Provider does not make any warranty that the Services will:
- be provided fault free at all times;
- be available at all times required by Customer;
- meet the Customer's requirements;
- produce any particular result expected by the Customer.
Limitation of Liability
- The Provider hereby excludes all liability in respect of the selection, use and suitability of the Services.
- The Provider shall use its reasonable endeavours to provide the Services in accordance with any agreed timescale but will not be liable to the Customer where it is unable to meet those timescales.
- The Provider shall not be liable for any loss or corruption of data resulting from delays, non-deliveries, mis-deliveries or interruptions to the Services.
- The Provider's liability for any matter arising out of or in connection with the Services and this Agreement is strictly limited to the Fees actually paid by Customer under this Agreement for the affected server or servers during the twelve months immediately preceding the relevant incident, or if greater Euro 50.00.
The Provider shall have no liability for any of the following losses or damage (whether foreseen, foreseeable, known or otherwise):
- loss of revenue, actual or anticipated profits, business, contracts, use of money, anticipated savings, opportunity, goodwill or reputation, or loss of, damage to or corruption of data; or
- any indirect or consequential loss or damage howsoever caused.
- The Provider shall not be liable or responsible for any failure to perform, or delay in performance of, any of the Provider's obligations under a Contract that is caused by any event outside the Provider's reasonable control.
- This Agreement does not exclude or limit in any way the Provider's liability for: (i) death or personal injury caused by the Provider's negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any matter which may not be limited or excluded under applicable law.
Term and Termination
- This Agreement shall commence upon registration by Customer for the Services and shall remain in effect for an unlimited period until terminated by either party in accordance with this Agreement.
- The Customer may terminate a particular Service or all Services at any time through the user interface.
The Provider may terminate any Service or this Agreement at any time by notifying the Customer through the contact details provided by Customer. Without limitation the Provider may suspend provision of Services and/or terminate this Agreement if the Customer is:
- excluded from any forum or community connected with the Services for breach of the applicable terms;
- in breach this Agreement and in the case of a breach capable of being remedied has not remedied the same within 7 days of receipt of notice from the Provider to do so; or
- insolvent, bankrupt, is subject to any winding up proceedings or takes any step in insolvency proceedings or to propose or make any agreement with creditors.
- Upon termination or expiry of this Agreement, Customer shall immediately cease use of the Services and connection to the Provider's systems.
- Termination or expiry of this Agreement for whatever reason shall not affect any rights or obligations which have accrued prior to termination.
- The parties are independent contractors, and nothing in this Agreement shall be deemed to constitute a partnership, joint-venture, principal-agent or any other relationship between them.
- The Customer agrees receive all contracts, notices, information and other communications under this Agreement electronically.
- The Customer may not transfer, assign, charge or otherwise dispose of this Agreement, or any of Customer's rights or obligations arising under it, without the Provider's prior written consent. The Services are for the use of the Customer only and may not be resold, made available to third parties or otherwise distributed without the prior written consent of the Provider. The Provider may assign or transfer this Agreement without requiring the consent of the Customer.
- If the Provider at any time does not insist upon strict performance of any of Customer's obligations under this Agreement, or fails to exercise any rights or remedies of the Provider, this shall not constitute a waiver or prevent enforcement of the same at a later date.
- If any provision of this Agreement is invalid, unlawful or unenforceable, then the remaining provisions will continue to be valid to the fullest extent permitted by law.
- This Agreement and any document expressly referred to herein represents the entire agreement between the Parties in relation to the Services and supersedes any prior agreement, understanding or arrangement between them, whether oral or in writing.
- The Provider has the right to revise and amend this Agreement from time to time for any reason e.g. to reflect changes in market conditions affecting the Provider's business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in the Provider's system's capabilities. By using any Services or in any event after 30 days have passed, after notification of a change to the applicable terms and conditions, the Customer shall be deemed to have accepted such change. All other variations require the Provider's prior consent in writing.
Law and jurisdiction
- This Agreement and in general the provision of the Services and any dispute or claim arising out of or in connection with them (including non-contractual disputes or claims) will be governed by the laws of the Netherlands and be subject to the exclusive jurisdiction of the courts of Delft.