These Terms of Service (the “Terms of Service” and/or “Terms”) contain the legal terms and conditions that govern your use of and access to smon.com and any related sites (the “Site”) and our Agents, Software, Documentation, Forums and Content (all as defined below and collectively, the “Services”) (the Site and the Services are referred to collectively as the “SMon.com Properties”). Please review these Terms of Service carefully before using the Services.
If you have entered into a separate paid Enterprise agreement with us for specific services, then the terms of that agreement controls if it conflicts with these Terms.
If you have not entered into a separate paid agreement with us for specific services, then by using the SMon.com Properties, clicking on the “I Agree” Button, completing the registration process, and/or browsing the Site or downloading any of our Agents, you represent that (1) you have read, understand, and agree to be bound by the Terms of Service, (2) you are of legal age to form a binding contract with SMon.com, and (3) you have the authority to enter into the Terms of Service personally or on behalf of the company or other organization you have named as the user, and to bind that entity to these Terms of Service. In the event you are agreeing to these Terms of Service on behalf of a company or organization, “you” and “your” will refer to the entity you are representing.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Service are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Service and any applicable Supplemental Terms are referred to herein as the “Terms.”
SMon.com may choose to modify or discontinue the Services, including any portions of the Services as we update our offerings and add more features. We may stop, suspend, or modify the Services at any time without prior notice to you.
SMon.com may update these Terms from time to time. The most current version of these Terms will be posted on Site. When changes are made, SMon.com will make a new copy of the Terms available at the Site and any new Supplemental Terms will be made available from within, or through, the affected Service on the Site or within the Agent. We will also update the “Last Updated” date at the top of the Terms of Service. Any changes to the Terms will be effective immediately for new users of the SMon.com Properties and, for all other users, any changes to the Terms will be effective thirty (30) days after posting notice of such changes on the Site, or within or through the affected Service on the Site, as applicable. If we determine in our sole discretion that an update is material, we will notify you through the Service and/or by email to the email address associated with the Administrator (defined below) for your account. We may also inform you of updates to the Terms in our blogs. We may require you to provide consent to the updated Terms in a specified manner before further use of the SMon.com Properties is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the SMon.com Properties. Otherwise, your continued use of the SMon.com Properties constitutes your acceptance of such change(s).
In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by our registration form (“Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are not a person barred from using the SMon.com Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You agree not to create an account using a false identity or information. You agree not to create an account or use the SMon.com Properties if you have been previously removed by SMon.com, or if you have been previously banned from any of the SMon.com Properties. It is your responsibility to safeguard the login and password that you use to access the Services and the Forums and you agree not to share your login and password with any third party, including not sharing your login amongst two or more users. You are responsible for any activity originating from your account, regardless of whether such activity is authorized by you. You should notify SMon.com immediately of any unauthorized use of your account.
Subject to compliance with these Terms of Service, SMon.com grants to you a limited, non-exclusive, non-transferrable, non-sublicensable right to: (i) access and use the SMon.com Properties for your internal business purposes; (ii) use the Documentation in support of such access and use of the SMon.com Properties; and (iii) reproduce portions of the SMon.com Properties for the sole purpose of using the SMon.com Properties for your internal business purposes. Unless otherwise specified by SMon.com in a separate license, your right to use any SMon.com Properties is subject to the Terms.
The rights granted to you in the Terms are subject to the following restrictions: You may not (i) copy, modify, host, sublicense or resell the Services; (ii) frame or utilize framing techniques to enclose any trademark, logo, or other SMon.com Properties (including images, text, page layout or form) of SMon.com; (iii) use metatags or other “hidden text” using SMon.com’s name or trademarks; (iv) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the SMon.com Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (v) use any manual or automated software devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials; (vi) access the SMon.com Properties in order to build a similar or competitive website, application or services; (vii) remove or destroy any copyright notices or other proprietary markings contained on or in the SMon.com Properties; (viii) access or attempt the access the Services by any means other than what SMon.com provides or expressly allows; (ix) modify, adapt or hack the Services or modify another website so as to falsely imply that it is associated with the Services, SMon.com, or any other SMon.com service; (x) reproduce, duplicate, copy, sell, resell or exploit any portion of the Services, use of the Services, or access to the Services, without the express written permission by SMon.com; (xi) transmit any worms or viruses or any code of a destructive nature; or circumvent any use restrictions put into place to prevent certain uses of the Services; (xii) violate any intellectual property right of any third party or behave in a manner that is unlawful, or otherwise in violation of our Community Guidelines; (xiii) misrepresent your affiliation with a person or entity; (xiv) attempt to disable, impair, or destroy the Services or disrupt or inhibit any other user from using the Services; (xv) market or advertise through the Services; (xvi) use any data mining or similar data gathering and extraction methods in connection with the Services; or (xvii) use the SMon.com Properties to violate any applicable law.
Information describing the Services is accessible worldwide but this does not mean the Services or certain portions of the Services are available in your country. We may restrict access to portions of the Services in certain countries. It is your responsibility to make sure your use of the Services is legal in the country where you reside. The Services may not be available in all languages. If at SMon.com’s reasonable determination, you are using the SMon.com Properties in a manner that violates laws, creates an excessive burden or potential adverse impact on SMon.com’s systems, in addition to any of its other rights or remedies, SMon.com may, without liability to SMon.com, immediately suspend your access to the SMon.com Properties.
Use of the Services may depend on your transmission of certain data (your “Data”). You retain all rights and ownership in your Data. We do not claim any ownership rights in your Data. You represent and warrant that you have the necessary rights and licenses required to provide your Data to SMon.com in connection with your use of the Services and that by providing your Data in this manner, you will not violate any intellectual property rights of third parties, confidential relationships, contractual obligations or laws. Without limiting the generality of the foregoing, you shall provide all notices to, and obtain any consents from, any data subject as required by any applicable law, rule or regulation in connection with the processing of any personally identifiable information of such data subjects via the Services by SMon.com and/or you. You shall be solely responsible for ensuring that any processing of Data by SMon.com and/or you via the Services does not violate any applicable laws. You shall not process or submit to the Services any Data that includes any: (i) “personal health information,” as defined under the Health Insurance Portability and Accountability Act, unless it enters into a separate agreement with SMon.com relating to the processing of such data; (ii) government issued identification numbers, including Social Security numbers, driver’s license numbers and other state-issued identification numbers; (iii) financial account information, including bank account numbers; (iv) payment card data, including credit card or debit card numbers; or (iv) “sensitive” personal data, as defined under Directive 95/46/EC of the European Parliament (“EU Directive”) and any national laws adopted pursuant to the EU Directive, about residents of Switzerland and any member country of the European Union, including racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual life, or the commission or alleged commission any crime or offense.
SMon.com provides the Service from the United States. By using and accessing the Service, you understand and agree to the storage and processing of your Data and any other information you choose to provide in the United States. SMon.com reserves the right to store and process your Data and any other information you choose to provide outside of the United States and will endeavor to give you 30 days’ notice in the event of such a change.
Except with respect to your Data and your User Content (defined below), you agree that SMon.com and our suppliers own all rights, title and interest in the SMon.com Properties and Content. SMon.com’s Software and other technology that may be used to provide the Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the SMon.com Properties. These terms do not grant you any right, title, or interest in any of the SMon.com Properties or any Content other than your Data and your User Content. These Terms do not grant you any rights to use the SMon.com trademarks, logos, domain names, or other brand features.
We appreciate your ideas, comments, suggestions, documents and/or proposals (“Feedback”). You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant SMon.com a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback.
Your SMon.com account provides you access to the SMon.com Community Forums and other public areas on the SMon.com Properties (collectively, the “Forums”). By accessing the Forums, you acknowledge that you are solely liable and responsible for how you use the Forums, as well as any damages that may result from the disclosure of your User Content. You also acknowledge that it is possible that you will be exposed to User Content from others that you may consider offensive, indecent, or otherwise objectionable. Views expressed on the Forums do not necessarily reflect SMon.com’s views. SMon.com does not endorse User Content posted by you or others. Certain User Content from others may be incorrectly labeled, rated, or categorized.
SMon.com offers several types of paid Services subject to Supplemental Payment Terms (“Commercial Services”). Commercial Services are listed on SMon.com’s product information page available at smon.com/products. Any information provided by SMon.com regarding potential future products, features, or functionality is intended to outline our general product direction and should not be relied upon by you in making a purchasing decision. Any information shared with you regarding potential future products is not a commitment, promise, or legal obligation to deliver any material, code, or functionality. The development, release, and timing of any future features or functionality described for our products remains at SMon.com's sole discretion and may be altered or withdrawn at any time without notice.
Technical support is only provided to users of Commercial Services based on your specific purchased Service. If you are using the Service via a Lite account, SMon.com provides support via the Forums and access to SMon.com installation guides and other documentation related to the Service at: https://smon.com/ (“Documentation”).
You may specify end users as "Administrators" through the administrative console of the Services. Administrators may have the ability to access, disclose, restrict or remove Data in or from Services accounts. Administrators may also have the ability to monitor, restrict, or terminate access to Services accounts for their end users. SMon.com responsibilities do not extend to your internal management or administration of the Services. You are responsible for: (i) maintaining the confidentiality of passwords of your account and any Administrator accounts; (ii) managing access to Administrator accounts; and (iii) ensuring that Administrators' use of the Services complies with this Agreement.
You will prevent unauthorized use of the Services by your Administrators and your end users and terminate any unauthorized use of or access to the Services. You will promptly notify SMon.com of any unauthorized use of or access to the Services.
The Services may contain links to third party websites or technology (for example, we may host a library of plugins created by entities other than SMon.com) (“Third Party Technology”). SMon.com does not endorse and is not responsible or liable for the products or services provided by such third parties. SMon.com is not responsible for the operation or functionality of such Third Party Technology. You are solely responsible for your use of any Third Party Technology. In addition, we may provide you with software governed by an open source license. If there are provisions in those open source licenses that expressly conflict with these Terms, the relevant open source license terms will apply. Please review our license page for the licenses governing our Agents and Third Party Technology at: https://smon.com/docs/licenses. ANY THIRD PARTY TECHNOLOGY DOWNLOADED OR OTHERWISE OBTAINED IN CONNECTION WITH YOUR USE OF THE NEW RELIC PROPERTIES IS DONE SO AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH THIRD PARTY TECHNOLOGY.
You agree to indemnify and hold SMon.com, its parents, subsidiaries, affiliates, officers, agents, employees, resellers or other partners and licensors harmless from any claim, demand, loss, or damages, including reasonable attorneys’ fees, arising out of or related to your Data, or the use thereof, including but not limited to allegations that any processing of your Data by SMon.com and/or you under this Agreement violates any applicable law or regulation, or infringes the privacy or intellectual property rights of a third party, your User Content, your use of the SMon.com Properties, your violation of these terms, or your violation of any law.
NEW RELIC PROVIDES THE NEW RELIC PROPERTIES “AS IS” AND ON AN “AS AVAILABLE” BASIS. YOUR USE OF THE NEW RELIC PROPERTIES IS AT YOUR OWN RISK. NEW RELIC PROVIDES THE NEW RELIC PROPERTIES WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. WE ALSO DISCLAIM ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SMon.com makes no warranty or condition that the SMon.com Properties will meet your requirements or be uninterrupted, timely, secure or error-free. SMon.com makes no warranty or condition that results obtained from your use of the SMon.com Properties will be accurate or reliable or that any errors in the SMon.com Properties will be corrected. SMon.com will have no responsibility for any harm to your computer system, loss or corruption of data, or other harm that results from your access to or use of the SMon.com Properties. No advice or information, whether oral or written, obtained by you in connection with your use of the SMon.com Properties shall create any warranty not expressly stated in these Terms. FROM TIME TO TIME, NEW RELIC MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OR CONDITION OF ANY IND, AND MAY BE MODIFIED OR DISCONTINUED AT ANY TIME AT OUR SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES AND TOOLS. Some states do not allow the types of disclaimers in this paragraph, so they may not apply to you.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL NEW RELIC, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT NEW RELIC HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. NEW RELIC’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES, THE SITE, THE AGENTS AND THE FORUMS WILL AT ALL TIMES BE LIMITED TO THE GREATER OF FIFTY U.S. DOLLARS (U.S. $50) OR THE AMOUNTS YOU PAID TO NEW RELIC IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NEW RELIC AND YOU. Some states do not allow the types of limitations in this paragraph, so they may not apply to you.
We reserve the right to suspend or cease providing the SMon.com Properties or any portion of the SMon.com Properties, at any time, with or without cause, and with or without notice. We may suspend or terminate your use of the SMon.com Properties if you are not complying with these Terms, or if you use the Services in any way that could cause us legal liability or disrupt others’ use of the Services. If we suspend or terminate your use, we will try to let you know in advance. If you want to terminate the Services at any time, you may do so by (a) notifying SMon.com and (b) closing your account for the Services that you use. Your written notice should be sent to SMon.com’s address set forth in the Notice section below or to: [email protected].
Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and data associated with or inside your account, including your Data. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of your Data associated therewith from our live databases. SMon.com will not have any liability whatsoever to you for any suspension or termination, including for deletion of your Data. All provisions of these Terms, which by their nature should survive, shall survive termination of Services, including without limitation ownership provisions, warranty disclaimers and limitations of liability.
The communications between you and SMon.com use electronic means, whether you visit the SMon.com Properties or send us e-mails, or whether we post notices on the SMon.com Properties or communicate with you via e-mail. For contractual purposes, you (a) consent to receive communications from us in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. Your consent in this section does not affect your statutory rights.
Where SMon.com requires that you provide an e-mail address, you are responsible for providing us with your most current e-mail address. In the event that the last e-mail address you provided to us is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the Terms, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to us at the following address: SMon.com, Inc. 188 Spear Street, Suite 1200, San Francisco, California 94105. Such notice shall be deemed given when received by SMon.com by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
You may not use, export, import or transfer the SMon.com Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the SMon.com Properties and any other applicable laws. In particular, but without limitation, the SMon.com Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone of the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the SMon.com Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the SMon.com Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by SMon.com are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer the SMon.com Properties, or any portion thereof, either directly or indirectly, to any country in violation of such laws and regulations.
If you are a U.S. government entity, you acknowledge that any Services provided are "Commercial Items" as defined at 48 C.F.R. 2.101, and are being provided as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
The Terms and any action related thereto will be governed and interpreted by and under the law of the State of California, without giving effect to any principles that provide for the application of the law of another jurisdiction.
These Terms constitute the entire and exclusive agreement between SMon.com and you with respect to the Services and supersede and replace any other agreements, terms and conditions applicable to the Services. These Terms constitute the entire and exclusive agreement between SMon.com and you with respect to the SMon.com Properties and supersede and replace any other agreements, terms and conditions applicable to the Services. Purchase orders placed by you shall be for the sole purpose of specifying the Commercial Services that you wish to purchase. Any other terms stated in any purchase order delivered to SMon.com by you, other than pursuant to an Order Form supplied by SMon.com, shall have no effect. These Terms create no third party beneficiary rights. SMon.com’s failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable the remaining provisions of the Agreement will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights in these Terms, and any such attempt is void, but SMon.com may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services. You and SMon.com are not legal partners or agents; but rather we have an independent contractor relationship. SMon.com will not be responsible for any failure to perform or delay in performing any of its obligations under these Terms where and to the extent that such failure or delay results directly or indirectly from an event beyond SMon.com’s reasonable control.
SMon.com respects the intellectual property rights of others and we expect our users to do the same. We respond to notices of copyright infringement consistent with the Digital Millennium Copyright Act (“DMCA”). If you believe that your work has been infringed in connection with the Services or access to your content was disabled or removed by SMon.com as a result of an improper copyright infringement notice, please see our DMCA notification procedures found at: https://smon.com/dmca/ and filling out the form.