Terms of service 

PerfDog site terms and conditions

Last Revised: November 1, 2021

1. Your Agreement with PerfDog

1.1. These Terms of Service (the 'Terms') constitute a legally binding agreement between you and PerfDog Inc. (henceforth 'PerfDog', 'we' or 'us'), located in Bennett, CO 80102, United States and its subsidiaries or affiliates involved in providing the Service (together, 'PerfDog'). If you are an individual, you represent and warrant that you have the legal right to enter into the Terms. If you are entering into the Terms on behalf of a legal entity, you represent and warrant that you have the authority to bind that entity and agree that the entity will bear full responsibility for the compliance of the entity's employees, contractors, agents, customers, and all other third parties that are granted or gain access to the Service by or on behalf of the entity (collectively, your 'Users'). If you (i) are entering into the Terms on behalf of an entity and do not have authority to bind that entity; or (ii) do not accept and agree to be bound by the Terms in their entirety, then you are not permitted to access or use the Service. Your permission to access and use the Service is conditioned upon your continued and uninterrupted compliance with the Terms. The 'Service' means the services PerfDog makes available through the perfdog.com web site or PerfDog API and any other software or services offered by PerfDog in connection to any of those. You acknowledge and agree that your access to or use of the Service will indicate your acceptance of the Terms.

1.2. You may not use the Service if you are a person barred from receiving the Service under the laws of the United States or any other countries, including the country in which you are resident or from which you access and use the Service. You affirm that you are over the age of 13, as the Service is not intended for children under 13.

2. Your Account and Use of the Service

2.1. You may be required to provide registration information and create an account (your 'Account') in order to access and use the Service. All registration information that you provide must be kept accurate, current, and complete at the time you register and throughout your use of the Service. You agree to promptly update your registration information, if any information becomes inaccurate or obsolete.

2.2. You are responsible for the security of your passwords and all other credentials used for accessing your Account or the Service and for any use (authorized or unauthorized) of your Account or the Service under your passwords or credentials. If you become aware of any unauthorized use of your password, credentials, or Account, you agree to notify PerfDog immediately.

2.3. Your use of the Service must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.

2.4. You agree not to (a) access (or attempt to access) the administrative interface of the Service by any means other than through the interfaces that are provided by PerfDog in connection with the Service, unless you have been specifically allowed to do so in a separate agreement with PerfDog, or (b) engage in any activity that interferes with, disrupts or impairs others' access to or use of the Service (or the servers and networks which are used in connection with the Service).

3. Acceptable Use Policy and Privacy Policy

3.1. You agree to comply with the PerfDog Acceptable Use Policy available at https://perfdog.com/acceptable-use-policy (the 'Acceptable Use Policy') which is incorporated herein by this reference and which may be revised from time to time in accordance with Section 14 of the Terms.

3.2. The Service shall be subject to the PerfDog Privacy Policy for the Service available at https://perfdog.com/privacy-policy (the 'Privacy Policy'). You agree to the use of your data in accordance with the Privacy Policy. The Privacy Policy may be revised from time to time in accordance with Section 14 of the Terms.

4. Content in the Service and Take Down Obligations

4.1. You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) that you or your Users transmit, process, store, duplicated, display, or retrieve using the Service (collectively, 'Your Content') is your sole responsibility. You represent and warrant that you have sufficient rights to Your Content and the use of Your Content with the Service will not violate any applicable laws or regulations.

4.2. PerfDog reserves the right (but shall have no obligation) to review, refuse, or remove any or all Content from the Service. You agree to immediately take down any Content that violates the Acceptable Use Policy including pursuant to a takedown request from PerfDog. In the event that you elect not to comply with a request from PerfDog to take down certain Content, PerfDog reserves the right to directly take down such Content.

4.3. In the event that you become aware of any violation of the Acceptable Use Policy by one of your Users, you shall immediately (i) notify PerfDog of the violation and (ii) terminate such User's access to the Service. The reinstatement of the User's access to the Service is prohibited without PerfDog's prior written consent, which shall not be unreasonably withheld. PerfDog reserves the right to disable access to the Service (including access by Users) in response to a violation or suspected violation of the Acceptable Use Policy.

4.4. You agree that you are solely responsible for (and that PerfDog has no responsibility to you or to any third party for) Your Content and for the consequences of your or your User's actions (including any loss or damage which PerfDog may suffer) as a result of such actions.

4.5. You agree that PerfDog has no responsibility or liability for the failure to store or deletion of Your Content. You further acknowledge that you are solely responsible for securing and backing up Your Content.

5. Proprietary Rights

5.1. You acknowledge and agree that, as between you and PerfDog, PerfDog owns all rights, title and interest in and to the Service, including any intellectual property rights which subsist in the Service or any component thereof (whether those rights happen to be registered or not and wherever in the world those rights may exist).

5.2. Except as provided in Section 7, PerfDog acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under the Terms in or to Your Content that you create, submit, post, transmit or display on or through the Service, including any intellectual property rights which subsist in Your Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with PerfDog, you agree that you are solely responsible for protecting and enforcing those rights and that PerfDog has no obligation to protect, enforce, or assist you in enforcing or protecting those rights. You further agree that any assistance with protecting or enforcing your rights that is provided by PerfDog at your request will be at your sole cost and expense.

6. License from PerfDog and Restrictions

6.1. PerfDog gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Service, as provided to you by PerfDog. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Service as provided by PerfDog, in the manner permitted by the Terms.

6.2. You will not (nor will you permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Service or any part thereof, unless this is expressly permitted or required by law, or unless you have obtained PerfDog's prior written consent or have received permission to do so through a separate written agreement with PerfDog (e.g., through an open source software license); (b) attempt to disable or circumvent any security mechanisms used by the Service; (c) use the Service to perform a malicious activity, including but not limited to spamming users, harvesting usernames and passwords, performing unauthorized scans of machines or ports or creating DoS attacks; or (d) upload or otherwise process any malicious content to or through the Service.

6.3. Unless PerfDog has given you specific and separate written permission to do so, you may not assign (or grant a sub-license of) your rights to use the Service, grant a security interest in or over your rights to use the Service, or otherwise transfer any part of your rights to use the Service.

6.4. Open source software licenses governing components of the Service released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with PerfDog for the use of the components of the Service released under an open source license.

7. License from You

7.1. PerfDog claims no ownership rights in or to any of Your Content. You retain all copyright and any other rights you already hold in Your Content. You hereby grant PerfDog a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute all Your Content that you submit, transmit, post, process, store, or display on or through the Service, for the sole purpose of enabling PerfDog to provide you with the Service.

7.2. You agree that PerfDog, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and web site listings (including links to your web site) for the purpose of advertising or publicizing your use of the Service.

8. Modification and Termination of the Service

8.1. PerfDog is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Service which PerfDog provides may change from time to time at PerfDog's sole discretion and without prior notice to you. Examples of changes to the form and nature of the Service include without limitation changes to fee, discount, and payment policies, security patches, and other enhancements, and added or discontinued pricing plans, products, and services (or functionality and features thereof).

8.2. You may discontinue your use of the Service at any time. PerfDog may, at any time, terminate your use of the Service and/or these Terms if (A) you have breached any provision of the Terms (or PerfDog reasonably believes that you do not intend to or are unable to comply with the provisions of the Terms); (B) PerfDog is required to do so by law (for example, due to a change to the law governing the provision of the Service); (C) the Service relies on data or services provided by a third party partner and the relationship with such partner (i) has expired or been terminated or (ii) requires PerfDog to change the way PerfDog provides the data or services through the Service; (D) providing the Service could create a substantial economic burden as determined by PerfDog in its reasonable good faith judgment; (E) providing the Service could create a security risk or material technical burden as determined by PerfDog in its reasonable good faith judgment; (F) PerfDog ceases commercially offering or provisioning all or a portion of the Service; or (G) you are in arrears with respect to any payment due PerfDog under the Terms.

8.3. If PerfDog suspends or terminates your use of the Service with cause, PerfDog will make a reasonable effort to give you access to, and the ability to export, your Content for a reasonable amount of time. If you voluntarily discontinue your use of the Service, you are solely responsible for exporting your Content prior to discontinuation.

8.4. In the event of termination by either party, you are solely responsible for transferring, backing up, and removing all of Your Content from the Service. You must complete all transfer, backup, and removal of Your Content prior to your termination of the Service. PerfDog reserves the right, but is under no obligation to delete Your Content from the Service after the Service or these Terms have been terminated.

8.5. Upon any termination of the Service under Section 8, these Terms will also terminate, but Sections 5.1, 8.5, 9, 10, 11, and 15 shall continue to be effective after these Terms are terminated.

9. EXCLUSION OF WARRANTIES

9.1. NOTHING IN THESE TERMS, INCLUDING SECTIONS 9 AND 10, SHALL EXCLUDE OR LIMIT PERFDOG'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.

9.2. YOU HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE THAT, UNLESS OTHERWISE STATED IN THESE TERMS OR ANOTHER WRITTEN AGREEMENT BETWEEN YOU AND PERFDOG, YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SERVICE IS PROVIDED 'AS IS' AND 'AS AVAILABLE.'

9.3. PERFDOG, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SERVICE INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PERFDOG, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE SERVICE WILL BE ACCURATE.

10. LIMITATION OF LIABILITY

10.1. SUBJECT TO SECTION 9.1 ABOVE, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT PERFDOG, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. EXCLUDED DAMAGES SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER INTANGIBLE LOSS.

10.2. THE LIMITATIONS ON PERFDOG'S LIABILITY TO YOU IN PARAGRAPH 10.1 ABOVE SHALL APPLY WHETHER OR NOT PERFDOG HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

10.3. SUBJECT TO SECTION 9.1 ABOVE, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT WILL THE CUMULATIVE LIABILITY OF PERFDOG, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, EMPLOYEES, ADVERTISERS, LICENSORS, SUPPLIERS, OR PARTNERS (COLLECTIVELY 'PERFDOG AND ITS PARTNERS'), FOR ALL LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES, OR DAMAGES FOR ANY CAUSE WHATSOEVER ARISING OUT OF RELATED TO THE TERMS OR SERVICE (INCLUDING ANY PURCHASED SUBSCRIPTION SERVICES) AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY AND WHETHER OR NOT ARISING UNDER CONTRACT OR TORT, EXCEED THE LESSER OF (A) THE FEES PAID BY YOU TO PERFDOG FOR THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM AND (B) FIVE THOUSAND U.S. DOLLARS ($5,000).

11. Indemnification

11.1. You agree to defend, indemnify, and hold harmless PerfDog and its Partners from and against any claim, suit, damages, judgments, losses (actual and consequential), liabilities, costs, and expenses (including reasonable attorneys' fees) of every kind of nature arising from or in any way related to a third-party claim concerning (a) your or your Users' breach of the Terms, (b) your or your Users' use of the Service, (c) your or your Users' violation of applicable laws, rules or regulations in connection with the Service, (d) your or your Users' Content; or (e) a dispute between you and any of your Users. In such a case, PerfDog will provide you with written notice of such claim, suit or action.

12. Policies Regarding Copyright and Trademarks

12.1. You agree to set up a process to respond to notices of alleged infringement that comply with the United States' Digital Millennium Copyright Act ('DMCA notices'). It is PerfDog's policy to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of repeat infringers. We reserve the right to take down Your Content upon receipt of a valid DMCA notice.

12.2. Unless you have agreed otherwise in writing with PerfDog, nothing in the Terms gives you a right to use any of PerfDog's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.

13. Third-Party Content

13.1. The Service may include hyperlinks to other websites, content, resources, email content, advertising, products, and other materials provided by companies or persons other than PerfDog (collectively, 'Third-Party Content'). PerfDog has no control over and disclaims all responsibility for all Third-Party Content. You acknowledge and agree that PerfDog is not responsible for the availability of and does not endorse any such Third-Party Content.

13.2. You acknowledge and agree that PerfDog is not liable for any loss or damage which may be incurred by you or your Users as a result of the availability of Third-Party Content, or as a result of any reliance placed by you on the completeness, accuracy or existence of any Third-Party Content.

14. Changes to the Terms

14.1. PerfDog may make changes to the Terms, Acceptable Use Policy, and Privacy Policy from time to time and at its sole discretion. When changes to the Terms are made, PerfDog will make the revised version of the Terms available at https://perfdog.com/terms-of-service. When changes to the Acceptable Use Policy are made, PerfDog will make the revised version of the Acceptable Use Policy available at https://perfdog.com/acceptable-use-policy. When changes to the Privacy Policy are made, PerfDog will make the revised version of the Privacy Policy available at https://perfdog.com/privacy-policy. The revised Terms, Acceptable Use, and Privacy Policy will each identify the date on which the document was last revised.

14.2. You acknowledge and agree that your continued access to or use of the Service after the date on which the revised Terms have been posted will indicate your acceptance of the revised Terms. You acknowledge and agree that your continued access to or use of the Service after the date on which the revised Privacy Policy has been posted will indicate your acceptance of the revised Privacy Policy. You acknowledge and agree that your continued access to or use of the Service after the date on which the revised Acceptable Use Policy has been posted will indicate your acceptance of the revised Acceptable Use Policy. If you do not accept revised Terms or the revised Privacy Policy, your only recourse is to stop using the Service and terminate these Terms. If your acceptance of the Terms or Privacy Policy by continued access or use of the Service is found to be contrary to law or public policy or unenforceable by a court of competent jurisdiction, then the most recent versions of the Terms and Privacy Policy that are enforceable and not contrary to law or public policy will be deemed to have remained in effect and to govern your use of the Service.

15. General Legal Terms

15.1. There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture. Neither party will have the power to bind the other or to incur obligations on the other's behalf without such other party's prior written consent.

15.2. You may not assign or transfer the Terms, in whole or in part, without PerfDog's prior written consent. Any attempted assignment or transfer in violation of this Section will be null, void, and without effect. Subject to the foregoing restrictions, the Terms shall inure to the benefit of the successors and permitted assigns of the parties.

15.3. You agree that PerfDog may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Service. If you have provided PerfDog with your email address, you acknowledge and agree that PerfDog may send you any notices required by law by email instead of by regular mail.

15.4. You agree that if PerfDog does not exercise or enforce any legal right or remedy which is contained in the Terms (or which PerfDog has the benefit of under any applicable law), that such inaction will not be considered or deemed a formal waiver of PerfDog's rights and that those rights or remedies will still be available to PerfDog.

15.5. PerfDog shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.

15.6. The Terms, and your relationship with PerfDog under the Terms, shall be governed by the laws of the State of Colorado without regard to its conflict of laws provisions. You and PerfDog agree to submit to the exclusive jurisdiction of the courts located within the county of Elbert, Colorado to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that PerfDog shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

15.7. If any provision of the Terms is found to be contrary to law or public policy by a court of competent jurisdiction, such provision shall be of no force or effect; but the remainder of the Terms shall continue in full force and effect. The parties shall meet and confer in good faith with respect to any provision found to be in contravention of the law or public policy in order to agree on a substitute provision.

15.8. If PerfDog provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict between the English and translated versions.

15.9. The headings in the Terms are for the convenience of reference only and have no legal effect.

This document is an adaptation of the Google App Engine Terms of Service. We have modified this original work with permission under the Creative Commons Attribution 3.0 License. Google Inc. is not connected with, does not sponsor and does not endorse PerfDog or its use of the work.