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DATABASE SPECIALISTS SERVICE AGREEMENT AND END USER LICENSE BY CLICKING THE "ACCEPT" BUTTON OR INSTALLING OR USING THE DATABASE Rx SERVICE (AS DEFINED AND REFERRED HEREIN AS THE "SERVICE"), YOU ARE CONSENTING TO BE BOUND BY AND BECOME A PARTY TO THIS DATABASE SPECIALISTS, INC. ("DSI") SERVICE AGREEMENT AND END USER LICENSE ("AGREEMENT"). IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT CLICK THE "ACCEPT" BUTTON, YOU MUST NOT INSTALL OR USE THE SERVICE, AND YOU WILL NOT BECOME A LICENSEE UNDER THIS AGREEMENT. TERMS AND CONDITIONS 1. SERVICE AGREEMENT AND END USER LICENSE. This Agreement states the terms and conditions under which you may use this web site ("Site") and the Database Rx service (as defined and referred herein as the "Service"). Please read this Agreement carefully. Your use of the Service and the Site is expressly conditioned upon your acceptance of these terms and the accurate completion of the online registration form. If you do not accept the terms stated here, do not use this Site and Service. The Service is not available to parties whose use of the Service has been suspended or terminated. 2. DATABASE Rx SERVICE. The Service means DSI's monitoring and reporting system for Oracle databases, which includes a monitoring tool software program ("Software"), diagnosis of Oracle database configuration and activity, alert notification, and user interface accessible through an Internet browser. The Service shall be provided on a per Oracle Instance basis. An Oracle Instance is defined as the following: The combination of one Oracle system global area and the Oracle background processes that access that Oracle system global area. Each Oracle Instance for which the Service is provided will be designated with an Instance Key. An Instance Key is defined as the following: A unique identifier that DSI will assign to each Oracle Instance when a new Oracle Instance is registered (either by purchasing the service or signing up for an evaluation period). DSI reserves the right to change the Service and may do so at any time with or without a revision of the terms and conditions of this Agreement. 3. THIRD PARTY TECHNOLOGY. You are responsible for obtaining and maintaining all computer hardware, software, services, and communications equipment ("Third Party Technology") needed to access the Service, and for paying all third-party access charges (e.g., ISP, telecommunications) incurred while using the Service. DSI makes no guarantees as to the continuous availability of the Service or of any specific feature(s) of the Service or that the Service will run on the Third Party Technology. DSI disclaims any liability or responsibility for damages, losses, costs, or expenses arising from or related to Third Party Technology. 4. CUSTOMER DATA. You are solely responsible for providing any and all information, data, or other content ("Customer Data") that shall be accessed by the Service. You hereby grant DSI the right to access, use, transmit, copy, adapt, and cache the Customer Data in order to provide you the Service. DSI may store and retain Customer Data incidental to providing the Service; provided, however, DSI reserves the right to delete at any time, without notice to you, any and all Customer Data from the Service. DSI shall be entitled to disclose Customer Data to any court, administrative or regulatory body to the extent required by law, which may also include disclosing your other registration and identification information. 5. OWNERSHIP. DSI hereby grants you a single, non-exclusive, non-transferable, non-sublicensable, limited personal license to use and install that portion of the Software provided through this Site solely for the purposes of using the Service for your personal or business purposes. Your right to use the Service is personal to you and you may not sub-license, transfer, sell or assign the Service or this Agreement to any third party without DSI's written approval. Any attempt to do so will be void and will entitle DSI to terminate your rights under this Agreement. You shall not distribute the Software in any manner. You acknowledge and agree that DSI owns all right, title and interest in and to DSI Technology (except for any software licensed by third parties to DSI), and all DSI proprietary content displayed on the Site, and that you shall not acquire any right, title, and interest in or to DSI Technology, or any DSI proprietary content displayed on the Site, except for the license expressly set forth in this Agreement. You shall not: (i) modify, adapt, translate, prepare or create any derivative works of DSI Technology, or documentation, including customization, translation or localization; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for DSI Technology; (iii) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to DSI Technology; (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels on the Site or DSI Technology; or (v) publish or disclose to a third party any results of benchmark tests run on DSI Technology without DSI's prior written consent. DSI Technology means the Service and all other computer software, technology and/or documentation which is supplied or used by DSI in or in connection with delivery of the Service, including without limitation all related source code, object code, algorithms, ideas and intellectual property rights. 6. COPYRIGHT PROTECTION The content of this Site, such as text, graphics, images, and other material as well as any Software licensed hereunder ("Site Content"), are protected by copyright under both United States and foreign laws. Unauthorized use of the Site Content or Software may violate copyright, trademark, and other laws. You must retain all copyright and other proprietary notices contained in the original Site Content on any copy you make of the Site Content. You may not sell or modify the Site Content or reproduce, display, publicly perform, distribute, or otherwise use the Site Content in any way for any public or commercial purpose. 7. REGISTRATION. As part of the registration and account creation process required to obtain access to the Service, you will provide DSI with certain registration information, all of which must be accurate and updated. You will choose a password when registering. You are responsible for maintaining the confidentiality of your password and account information. Permitting use of the Service by a third party is prohibited and is a violation of this Agreement. If there is a breach of security through your account, you must immediately change your password and also notify DSI in writing. You are fully responsible for all activities that occur using your password or account. DSI will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. You may not use anyone else's password at any time. DSI may use your name in any customer reference list, advertisement, or in any press release issued by DSI regarding the licensing of the Service. 8. RESTRICTIONS AND POLICIES. You will only use the Service for lawful purposes, in compliance with all applicable laws including, without limitations, copyright and trademark laws. Unlawful activities may include (without limit) storing, distributing or transmitting any unlawful material, or attempting to compromise the security of any networked account or site. 9. SUPPORT. DSI, at its sole discretion, may provide you with written instructions for the Service at http://www.dbspecialists.com; provided, however, under no circumstances will DSI have any obligation to provide you with any support for the Service including but not limited to hard-copy documentation, technical support, upgrades, enhancements, modifications, email or phone support. Any such support may be offered by DSI, at its sole discretion, under a separate support or service agreement (if any) as described at http://www.dbspecialists.com. 10. FREE 30-DAY EVALUATION PERIOD. Subject to the terms and conditions of this Agreement, DSI will not charge you fees for access to the Service for a free 30-day evaluation period ("Evaluation Period"), commencing on the registration date of your account and expiring thirty days thereafter. You will be limited to only one Evaluation Period. 11. PAYMENT AND FEES. The Service may be purchased for a twelve (12) month subscription period payable in advance. If you elect to purchase an initial subscription or renew a subscription to the Service, you must provide DSI with valid credit card information or a valid check, and DSI will charge you fees for a twelve (12) month subscription period. You agree to pay all fees and late charges, including applicable taxes, incurred through your account at the rates in effect for the billing period in which such fees and late charges, including applicable taxes, are incurred. Currently applicable fees are available at http://www.dbspecialists.com. DSI reserves the right to change the amount of, or basis for determining, any fees, and to institute new fees, effective upon prior notice to you (which may be sent by email). By submitting such credit card information, you give DSI permission to charge all fees and late charges, including applicable taxes, incurred through your account to the credit card you designate at the time of purchase. All fees and late charges, including applicable taxes, will be charged at the time of purchase. Your right to use the Service is subject to any restrictions established by DSI or by your credit card issuer. If payment cannot be charged to your credit card or your payment is returned to DSI for any reason, including charge back, DSI reserves the right to either suspend or terminate your account and all its obligations under this Agreement. DSI will email you a renewal notice approximately one month before the one-year anniversary of the date on which you subscribed and give you the opportunity to renew the twelve (12) month subscription; provided, however, there is no breach of this Agreement by you. Renewal fees will be equal to rates in effect for the billing period in which such fees are incurred. 12. BILLING. You agree to provide DSI with accurate and complete billing information, including your legal name, address, and telephone number, and to update this information within 30 days of any change to it. If you believe DSI has billed you incorrectly, you must contact DSI no later than 60 days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your ID or password stored on the Service), you must promptly change your password, or request that your password be reset by giving notice to DSI. DSI may choose to bill you through an invoice, in which case, full payment for invoices issued in any given month must be received by DSI thirty (30) days after the mailing date of the invoice, or the Service may be terminated. Unpaid fees are subject to late charges of interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, plus all expenses of collection. 13. TERMINATION. If you are using the Service as part of the Evaluation Period, this Agreement shall terminate upon expiration of the Evaluation Period and any use or access to the Service shall terminate until you purchase and pay for the Service. If you are using the Service as part of a paid twelve (12) month subscription, you may terminate this Agreement by notifying DSI 30 days in advance of the termination date of such subscription; provided, however, under no circumstances will DSI refund or be obligated to refund purchases of the Service, or any portion thereof, to you. DSI reserves the right to terminate this Agreement by notifying you 30 days in advance of the termination date; provided, however, DSI reserves the right to terminate this Agreement without prior notice or liability, at any time for any reason, in the event you breach this Agreement. If DSI terminates this Agreement by notifying you 30 days in advance of the termination date, DSI will refund your payment for the Service on a pro-rated rate of the actual months remaining on your account term; provided, however, under no circumstances will DSI refund or be obligated to refund purchases of the Service, or any portion thereof, in the event of breach of this Agreement by you. In the event of termination, you will have no further right to the Service and DSI shall have no further obligations to you. Upon termination, you shall destroy all copies of the Software. 14. SURVIVABILITY. In the event of any termination or expiration of this Agreement for any reason, any accrued rights to payment, warranty disclaimers, indemnifications, and limitations of liability expressly provided under this Agreement shall survive termination. DSI shall not be liable to you for any damages of any sort resulting solely from terminating this Agreement in accordance with its terms. 15. WARRANTY DISCLAIMER YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE AND ALL INFORMATION, PRODUCTS AND OTHER DATA (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. DSI EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND AS TO THE SERVICE AND ALL INFORMATION, PRODUCTS AND OTHER DATA (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. DSI MAKES NO WARRANTY OF ANY KIND AS TO THE SERVICE INCLUDING WITHOUT LIMITATION THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, DATA OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN DSI TECHNOLOGY WILL BE CORRECTED. ANY MATERIAL TRANSMITTED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION CUSTOMER DATA, IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE TRANSMISSION OF ANY SUCH MATERIAL OR USE OF THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DSI OR THROUGH OR FROM THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. TO THE EXTENT THAT ANY PART OF THIS SECTION IS NOT CONSISTENT WITH ANY OTHER PART OF THESE TERMS, THEN THIS SECTION WILL CONTROL. 16. LIMITATION OF LIABILITY. YOU AGREE THAT NEITHER DSI NOR ANY OF ITS AFFILIATES WILL BE LIABLE FOR ANY HARMS, WHICH LAWYERS AND COURTS OFTEN CALL DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, FAILURE TO PROVIDE THE SERIVICE, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA, OR OTHER INTANGIBLE LOSSES, EVEN IF DSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF GETTING SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CUSTOMER DATA; (iv) STATEMENTS OR CONDUCT OF ANYONE AT DSI; (v) THE USE, INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE OR NONPERFORMANCE OF ANY THIRD PARTY ACCOUNT PROVIDER SITE, EVEN IF THE PROVIDER HAS BEEN ADVISED PREVIOUSLY OF THE POSSIBILITY OF SUCH DAMAGES; OR (vi) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT SHALL DSI'S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAID BY YOU TO DSI UNDER THIS AGREEMENT. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER THE EVENTS WHICH GAVE RISE TO THE CAUSE OF ACTION OCCURRED. THE PARTIES AGREE THAT THE FOREGOING REPRESENTS A REASONABLE ALLOCATION OF THE RISK ASSOCIATED WITH THIS AGREEMENT IN LIGHT OF THE FEE CHARGES FOR THE SERVICE. Some states do not allow limitations of liability, so the foregoing disclaimer may not fully apply to you. You may also have other legal rights, which vary from state to state. 17. LINKS TO OTHER SITES AND OTHER MATERIALS. The Site contains links to third party web sites. These links are provided solely as a convenience to you and not as an endorsement by DSI of the content on such third-party web sites or the quality of such third-party software. DSI is not responsible for the content of linked third-party sites or such third-party software and does not make any representations or warranties regarding the content, accuracy, or quality of the same. If you decides to access linked third-party web sites or software, you do so at your own risk and DSI shall not be responsible or liable for any loss or damage of any sort incurred as the result of content, goods or services available on or through any such sites. 18. U.S. GOVERNMENT MATTERS You may not remove or export from the United States or allow the export or re-export of any part of the software or applicable documentation incorporated in the Service, if any, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Any use, modification, reproduction, release, performance, display, or disclosure of the software or applicable documentation incorporated in the Service by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. In compliance with the Children's Online Privacy Protection Act, DSI prohibits children under 13 years of age to register for DSI's service. By agreeing to these terms, you represent you are not under 13 years of age. 19. WEB SITE SECURITY RULES. You are prohibited from violating or attempting to violate the security of the Site, including, without limitation, (a) accessing data not intended for such user or logging into a server or account which the user is not authorized to access, (b) attempting to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization, (c) attempting to interfere with service to any user, host, or network, including, without limitation, via means of submitting a virus to the Site, overloading, "flooding", "spamming", "mailbombing", or "crashing", (d) sending any unsolicited e-mail, including promotions and/or advertising of products or services, or (e) forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting. Violations of system or network security may result in civil or criminal liability. DSI will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. 20. INDEMNIFICATION. You agree to indemnify, defend and hold DSI and our subsidiaries, affiliates, officers, directors, agents, and employees harmless from and against any loss, cost, damages, liability, or expense including reasonable attorneys' fees, arising from or related to any breach by you of any terms of this Agreement. DSI will have the right to participate in its defense and hire counsel of its choice, at your expense. You will not settle any action or claims on DSI's behalf without the prior written consent of DSI. 21. NON-WAIVER. The failure of DSI to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. 22. SECTION HEADINGS. Section headings are for the convenience of the parties and do not form a part of this Agreement. Whenever appropriate in this Agreement, terms in the singular form shall include the plural (and vice versa) and any gender form shall include all others. 23. ASSIGNMENT. DSI may assign this Agreement without restriction, provided the assignee agrees in writing to be bound by the terms of this Agreement. You shall not assign this Agreement, whether by operation of law or otherwise, without the prior written consent of DSI and any attempt to do so without such consent will be void. This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. 24. GOVERNING LAW; DISPUTES; JURISDICTION. This Agreement shall be governed by and construed in accordance with the laws of the State of California of the United States of America, without regard to the application of conflict of law principles. All disputes arising out of this Agreement shall be submitted to binding arbitration before the American Arbitration Association to be determined and resolved by the rules of the AAA in effect at the time of submission. Any such arbitration shall be held in San Francisco, California. The exclusive choice of forum for any actions arising out of this Agreement shall be the state and federal courts located in San Francisco, California. The parties hereto irrevocably consent to the exclusive choice of forum and personal jurisdiction of such courts for any action arising out of this Agreement. 25. INTEGRATION. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. 26. AMENDMENTS. DSI reserves the right to amend the terms of this Agreement at any time by posting the amended terms on this Site effective upon prior notice to you (which may be sent by email). If you continue to use the Service thereafter, your continued use of the Service shall constitute acceptance of the amended terms and an agreement to be bound by the terms as amended. If you do not agree to the changes, you agree to discontinue your use of the Service. 27. PROFESSIONAL FEES AND COSTS. If any legal or equitable action, arbitration, or other proceeding, is brought to enforce this Agreement, the successful or prevailing party or parties in such undertaking shall be entitled to recover reasonable attorneys' fees and other professional fees, expert witness fees, court costs and other expenses incurred in such action or proceeding. 28. NOTICES. Unless otherwise provided for in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile; the day after it is sent, if sent for next day delivery by next business day delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. All email notices from DSI under this Agreement will be deemed to have been duly given when sent. 29. OUTSIDE THE U.S. If you are located outside the U.S., you agree that this Agreement and all related documentation is and will be in the English language, and you are responsible for complying with any local laws in its jurisdiction which might impact its right to import, export or use the Service, and you represents that you have complied with any regulations or registration procedures required by applicable law to make this Agreement enforceable. If Licensee has received a translation into another language, it has been provided for Licensee's convenience only. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. 30. YOUR ONLINE ACCEPTANCE. YOU ACKNOWLEDGE THAT THIS AGREEMENT APPEARS IN ITS ENTIRETY ON THE SITE AND YOU ARE REQUIRED AFFIRMATIVELY TO VIEW AND INDICATE YOUR ASSENT TO THIS AGREEMENT BY CLICKING THE ACCEPTANCE BUTTON, LABELED "ACCEPT" BEFORE PROCEEDING WITH A DOWNLOAD OF THE SOFTWARE OR USE OF THE SERVICE. YOU FURTHER ACKNOWLEDGE THAT YOU ARE NOT ABLE TO DOWNLOAD THE SOFTWARE OR USE THE SERVICE UNLESS YOU CLICK THE ACCEPTANCE BUTTON. BY CLICKING THE ACCEPTANCE BUTTON, INSTALLING THE SOFTWARE, AND USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU ARE AFFIRMATIVELY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED, AND YOU MUST NOT INSTALL THE SOFTWARE OR USE THE SERVICE.
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