Last updated 31 October 2014
Sphinx Technologies Inc ("Sphinx") invites you (the "Customer") to use the Sphinx Tools service ("Sphinx Tools"), subject to these terms of service ("Agreement"). This Agreement takes effect when you click an "I Accept" button or check box presented with these terms and conditions or, if earlier, when you first use any aspect of Sphinx Tools (the "Effective Date"). By using any aspect of Sphinx Tools, you affirm that you have read and agree to all of the terms and conditions of this Agreement.
Capitalized terms are defined either in this Section 1, or in the context in which they first appear in the Agreement (including the Registration Form).
"Agreement" means these Sphinx Tools Terms of Service, together with the Registration Form, which is incorporated herein by reference.
"API Key" means a unique code generated by Sphinx and assigned to a particular Organization.
"Authorized Server" means a Supported Server which is designated for Sphinx Tools and assigned to a particular Organization by Customer.
"Customer" means either: (a) the LLC, corporation, organization or government agency designated on the Registration Form, including internal divisions of that entity, but excluding any subsidiaries or other affiliates of the entity; or (b) if no entity is designated on the Registration Form, the individual identified on such form.
"Customer Account" means an account created by Customer, and with which certain Organizations, API Keys and Authorized Servers are associated. "Effective Date" means the date of the Registration Form as shown thereon.
"GPLv2" means version 2 of the GNU General Public License, as published by the Free Software Foundation. The full text of the GPL License is available at http://www.gnu.org/licenses/gpl-2.0.html.
"Named User" means a registered Sphinx Tools customer (such as an employee or other authorized representative of Customer) to whom the Customer has provided authorized access to dashboard and other analytical information generated by Sphinx Tools in connection with Performance Data for a particular Organization.
"Organization" means a collection of related Authorized Servers designated by Customer using Sphinx Tools, such as according to project, business unit or environment, and which are identified by an API Key assigned by Sphinx to the Organization.
"Registration Form" means the registration form submitted electronically by or on behalf of Customer via the Sphinx Tools Website.
"Sphinx Cloud Tools" means database performance monitoring services (such as Query Analytics) made available to Customer's respective Named Users by or on behalf of Sphinx in connection with the Customer Account, including (without limitation) related Performance Data analysis, graphing and storage, and Customer Account access.
"ST Website" means https://tools.sphinxsearch.com, or such other website which Sphinx may designate for Sphinx Tools .
"Service Level" means the particular scope of Sphinx Tools access and services which may apply within a specified range, as determined by Sphinx's minimum specifications and policies (such as, without limitation, compatibility specifications, data retention time or storage limits, and limits on the number of Organizations per Customer and Authorized Servers per Organization), as described on the ST Website and modified from time to time by Sphinx in its sole discretion.
"Supported Server" means a version of Sphinx Server which is supported by Sphinx Tools , as described on the ST Website.
2. SCOPE OF AGREEMENT.
2.1 Sphinx Tools . Subject to the terms and conditions of this Agreement, and Sphinx authorization of the Customer Account, Sphinx grants to the Customer a limited, non-exclusive, non-transferable and revocable license during the term of this Agreement to: (a) register and define Organizations in connection with the Customer Account; (b) assign Authorized Servers to those Organizations; (c) authorize Named Users with respect to those Organizations; and (d) if accepted by Sphinx, remotely access and use Sphinx Tools via the ST Website for the sole purpose of monitoring the performance of Authorized Servers within those Organizations, in accordance with the applicable Service Level. Customer is responsible for providing all equipment, services and connectivity necessary to access the Customer Account and the computer servers from which Sphinx Tools is delivered, including (without limitation) a compatible computer with access to the Internet. Customer acknowledges that, from time to time, without prior notice, the form and nature of Sphinx Tools and Sphinx Tools may change as Sphinx implements innovations or other changes.
2.2 DISTRIBUTED SOFTWARE. All software made available by Sphinx for download by Customer in connection with Sphinx Tools is subject to the terms and conditions of GPLv2. Notwithstanding any other provision of this Agreement, this Agreement does not amend or otherwise limit or change any of Customer's rights or duties under GPLv2.
3. TERM & TERMINATION.
This Agreement is effective on the Effective Date and shall continue in full force until terminated by Sphinx or Customer. In its sole and absolute discretion and without notice, Sphinx reserves the right to suspend, remove or disable access to Sphinx Tools or any portion of the ST Website. Sections 3 through 10 will survive any termination of this Agreement.
Access to Sphinx Tools in accordance with this Agreement is free for the time being. Sphinx reserves the right to convert Sphinx Tools to a fee-based service at any time.
5. AUTHORITY; CONDITIONS OF USE; OTHER LIMITATIONS.
5.1 Authority. Customer represents, warrants and covenants to Sphinx that: (a) Customer has and will maintain the full right and power to enter into and perform this Agreement without the further consent of any third party, including (without limitation) the right to use Sphinx Tools with respect to the Authorized Servers, to change the database server configurations of Authorized Servers, and to generate and upload Performance Data for analysis, storage and other use in accordance with this Agreement; and (b) neither Customer's entry into this Agreement nor Customer's or Sphinx's performance hereunder will conflict with any other contractual, legal or other obligation which Customer may have to any other party. Customer shall defend, indemnify and hold Sphinx and its affiliates, and their respective directors, officers, employees, agents, representatives and contractors, harmless from any and all costs and expenses that arise from a violation of the foregoing representation and warranty, including (without limitation) any third party claims and related attorneys' fees.
5.2 Conditions of Use. Customer represents, warrants and covenants to Sphinx that neither Customer nor any Named User will, directly or indirectly, use Sphinx Tools, the Customer Account, Sphinx Tools , the Performance Data or any Authorized Server: (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 Sphinx or any third party; (c) for any use that may be disruptive, such as to the networks through which Customer accesses and uses Sphinx Tools ; (d) in violation of any regulation, policy or procedure of any network through which Customer accesses and uses Sphinx Tools ; (e) to access or attempt to access any database, software, content or account for which Customer has no access authorization, or to duplicate, modify, distribute or display any of the content from any such database, software, content or account; or (f) to store, retrieve, transmit or view any illegal images, materials or information, any harassing, libelous, abusive, threatening or harmful material of any kind or nature, any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation, any code or material that violates the intellectual property rights of others, or any viruses, worms, "Trojan horses" or any other similar contaminating or destructive features. Customer agrees not to access (or attempt to access) or permit or encourage any third party to access (or attempt to access) any Performance Data or other aspect of Sphinx Tools or the Customer Account by any means other than through a designated URL provided by Sphinx.
5.3 Access Security. Sphinx Tools is designed and intended to provide Named Users with personal, password-controlled access to the Performance Data. Thus, without limiting the generality of any of the other conditions or restrictions set forth in this Agreement, neither Customer nor any Named User may directly or indirectly: (a) permit third party access, or take actions which result in access, or attempts to access; (b) distribute or share any password with anyone; (c) permit anyone other than a Named User to access the Performance Data; or (d) lease, license or otherwise charge others for use or access to the Customer Account or Performance Data. Sphinx may use automated procedures and other means to detect violations of this Agreement, and may immediately disable and/or terminate offending Customer Accounts and/or Named Users. Sphinx is not responsible for interruptions that may result from any such disabling or termination.
5.4 Restrictions. Neither Customer nor any Named User may use Sphinx Tools or the Customer Account for any purpose except as expressly permitted in this Agreement. Without limiting the generality of the foregoing limitation, neither Customer nor any Named User will, nor will Customer or any Named User allow others to: (a) copy (other than any permitted backup copy) or modify Sphinx Tools ; (b) reverse engineer, decompile, disassemble, derive the source code of, create derivative works from or otherwise exploit Sphinx Tools (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 Sphinx Tools 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 Sphinx Tools , whether directly or indirectly; (e) use Sphinx Tools 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 Sphinx Tools .
6. PROPRIETARY RIGHTS; FEEDBACK.
6.1.1 Tool, Services and Related Work Product. . All title, ownership, and intellectual property rights in and to Sphinx Tools , 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 Sphinx and its licensors, and nothing in this Agreement should be construed as transferring any aspects of such rights to Customer or any third party. Sphinx reserves any and all rights not expressly granted herein.
6.1.2 Performance Data. Customer retains any copyright and any other rights Customer already holds in Performance Data which Customer creates, submits, posts or displays on or through, Sphinx Tools . By creating, submitting, posting or displaying such Performance Data, Customer gives Sphinx a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Performance Data on or through, Sphinx Tools . The foregoing license is for the sole purpose of enabling Sphinx to provide or improve Sphinx Tools , such as by (without limitation): (a) creating backup copies of Performance Data; (b) transmitting Performance Data over various public networks; and (c) making changes as necessary to conform and adapt Performance Data to the technical requirements of connecting networks, devices or services. Customer confirms and warrants to Sphinx that Customer has all the rights, power and authority necessary to grant the above license.
6.2. Feedback. Customer grants Sphinx permission to contact Customer and Named Users in connection with Sphinx Tools. Customer may provide feedback to Sphinx at any time, in which case Customer agrees that: (a) the content of all oral and written comments or reports provided to Sphinx as feedback, including but not limited to information, corrections, ideas and concepts, is the property of Sphinx, and Customer hereby agrees to assign any copyright and other such rights therein to Sphinx, without any accounting or payment to Customer; and (b) Sphinx may use the feedback in any way that it desires in its sole discretion, including (without limitation) by incorporating any feedback into Sphinx Tools or one or more other products.
7. Warranty; Disclaimer.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, SPHINX MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER IN CONNECTION WITH SPHINX TOOLS, 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. SPHINX 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, Sphinx DOES NOT WARRANT RESULTS OR WARRANT THAT SPHINX TOOLS 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.
8. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING ELSE HEREIN OR OTHERWISE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SPHINX TECHNOLOGIES INC 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 SPHINX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY OTHER CLAIM BY CUSTOMER OR FOR ANY THIRD PARTY CLAIM. SPHINX TOOLS 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 8 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT SPHINX 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 Authorized Servers, Performance Data, databases, files, utilities, software and other equipment and systems of Customer.
Unless Customer withdraws such consent in writing, Customer authorizes Sphinx to publicly acknowledge Customer's use of Sphinx Tools, such as (without limitation) on the ST Website or other Sphinx websites.
10.1 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.
10.2 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 Sphinx. Any attempt by Customer to assign this Agreement without Sphinx's prior written consent shall be null and void. There are no intended third party beneficiaries of this Agreement.
10.3 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.
10.4 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.
10.5 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 (i) 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, Sphinx 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.
10.6 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. Sphinx may provide any notice to Customer under this Agreement by sending a message to the email address then on record with Sphinx. Notices Sphinx provides by email will be effective when Sphinx 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 Account when Sphinx sends the email, whether or not Customer actually receives the email. To give Sphinx notice under this Agreement, Customer must contact Sphinx as follows: (i) 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 Sphinx website. Sphinx may update the foregoing email or mailing address by posting revised contact information on the ST Website. Notices provided by personal delivery will be effective immediately. Notices provided to Sphinx by you via: (a) email transmission will be effective upon Sphinx 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.
10.7 U.S. Government Restricted Rights. If Sphinx Tools 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.
10.8 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. Sphinx 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 Sphinx.
10.9 Modifications. Sphinx may modify this Agreement (including any policies) at any time by posting a revised version on the ST Website or by otherwise notifying you in accordance with Section 10.6. Modified terms will become effective upon posting or, if Sphinx notifies you by email, as stated in the email message. By continuing to use any aspect of Sphinx Tools 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 ST Website regularly for modifications to this Agreement. Sphinx last modified this Agreement on the date listed at the beginning of this Agreement.
10.10 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 10.10, 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 Sphinx 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.
10.11 Registration. From time to time, Sphinx may choose to enable registration of a Customer Account through one or more third party accounts. To the extent that Customer creates a Customer Account through such a third party account, Customer grants to Sphinx any and all access and other rights to such third party log-in credentials or other content it may need in order to authenticate and deploy Sphinx Tools . Registration of a Customer Account will not automatically entitle Customer to use Sphinx Tools; rather, use may be subject to separate Sphinx approval, which may be granted, withheld or made conditional in the sole and absolute discretion of Sphinx.
10.12 Print this Agreement. Sphinx encourages Customer to print a copy of this Agreement and the Registration Form on the date that the Registration Form is submitted.