Subject matter #
- The subject matter of these terms and conditions (hereinafter “Terms and Conditions”) is the use of Perfvane. The Terms and Conditions regulate all relations between Andrey Dorokhov and Andrey Dorokhov’s customer (hereinafter “Customer”) regarding the use of Perfvane and are part of the Agreement as defined below. Standard business conditions and/or general terms and conditions of the Customer do not apply, regardless of whether or not Andrey Dorokhov has expressly objected to them in a particular case.
- Perfvane communicates with the GitHub hosting service (hereinafter “GitHub”), which is offered by GitHub Inc. on the Customer’s behalf. Condition to the proper use of Perfvane is a valid contract with GitHub Inc. on the use of GitHub, which may lead to costs on the Customer’s sole responsibility. The Customer will provide Perfvane with his GitHub account information (hereinafter “GitHub Sign-In”) when signing in through GitHub via perfvane.com (hereinafter the “Website”) automatically. He allows Andrey Dorokhov to access the Customer’s GitHub account. Perfvane will directly communicate in the name of the Customer with GitHub and the Customer authorizes Perfvane to act on his behalf towards GitHub Inc. The Customer is solely liable for any costs or damages that GitHub Inc. associates with the GitHub Sign-In.
Scope of services #
- Andrey Dorokhov provides Perfvane as a service. This means, that Perfvane may be used via the internet only.
- The Perfvane is a hosted service that provides the infrastructure to automate process of performance anomalies detection in projects. The functional range of the service is dependent on the package the Customer chooses and will be displayed on the Website.
- Perfvane offers its services for (i) open software projects, where the projects including their source codes can be viewed publicly .
- No consultancy, training, trouble shooting or support is within the scope of the services offered by Andrey Dorokhov under this Agreement if and to the extent they are not part of the agreed warranty as set out in section 8 hereunder.
- Andrey Dorokhov offers unpaid and paid services. If a service by Andrey Dorokhov is offered free of charge, section 8 shall apply.
Concluding of the Agreement #
- Using the Perfvane requires the opening of an account via the Website by using the Customer’s GitHub Sign-In (hereinafter the “Account”).
- The opening of an Account by the Customer is deemed an offer to conclude an agreement under these Terms and Conditions with Andrey Dorokhov (hereinafter the “Agreement”). Andrey Dorokhov may at its own discretion accept this offer by explicitly accepting it or rendering services under this Agreement.
- An Account may only be used by one single person. The Customer is entitled to create separate Accounts for his employees.
- The person opening the Account represents that he/she has the legal authority to bind the legal entity he/she acts for to this Agreement and may in knowledge of this Agreement provide the GitHub Sign-Ins to Andrey Dorokhov.
In connection with the registration the customer is obliged to
- make precise and correct allegations and to correct the data if changes accrue;
- keep Account data confidential at all times and to do everything to avoid any third party getting hold of the data. In this respect 'third party' also includes all employees of the Customer that are not designated to use the Perfvane;
- immediately inform Andrey Dorokhov in case of loss, theft or other disclosure of the Account data to a third party or in a suspicion of misuse of the Account data and to immediately change the password;
- allow the use of the Account data only designated administrators to be specified in the registration procedure.
Obligations of the customer #
- The Customer must not interfere or intent to interfere in any manner with the functionality or proper working of the Perfvane.
- The Customer is obliged to use the Perfvane and services in an appropriate way.
- When using testing data the Customer will make sure that these data do not contain unanonymized personal data of real people.
- The Customer will indemnify and hold harmless Andrey Dorokhov, its officers and directors, employees and agents from any and all third party claims, damages, costs and (including reasonable attorneys fees) arising out of the Customer’s use of the Perfvane in a manner not authorized by this Agreement, and/or applicable law, or the Customer’s or it’s employees’ or personnel’s negligence or willful misconduct.
Downtime and services suspensions #
- Adjustments, changes and updates of the Perfvane that help to avoid or maintain dysfunctions of the Perfvane may lead to temporary service suspensions. Andrey Dororkhov will try to limit downtime of the service or restrictions of accessibility to 10 hours a month. Andrey Dorokhov will try to do regular maintenance works during the weekend or at times between 10 p.m. and 6 a.m. (CET). Outside of the said hours, Andrey Dorokhov will inform the Customer about upcoming maintenance works.
- The Customer is aware that the service relies on a working internet infrastructure. Additional downtime of the service can occur if the website is not available and at any other time with restrictive access to the internet of the Customer.
- The Customer is aware that the Perfvane does not work if GitHub is not properly available (be it to Andrey Dorokhov or the Customer).
- For the avoidance of doubt, in case of dysfunctions of the Perfvane caused by Andrey Dorokhov through willful intent or gross negligence, Andrey Dorokhov’s liability for such dysfunctions is not excluded by this section 5.
Rights to use #
- Subject to the full payment of due fees for the services under the Agreement, Customer is granted a limited, non-exclusive, non-transferable, non-sublicenseable right to use the Perfvane as software as a service via the internet according to these Terms and Conditions.
- The Customer is not granted any additional right to the Perfvane or any other intellectual property of Andrey Dorokhov. This especially means that the Customer shall not be entitled to make copies of the Perfvane. The Customer shall not translate the program code into other forms of code (decompilation) or employ other methods aimed at revealing the Perfvane’s code in the various stages of its development (reverse engineering).
- The Customer is not entitled to remove or make alterations to copyright notices, serial numbers or other features which serve to identify the Perfvane.
- Defects in the supplied Perfvane shall be remediated within a reasonable time following a detailed notification of such defect being given to Andrey Dorokhov by the Customer.
- For the purpose of remedying defects, Andrey Dorokhov may choose to replace the defective Perfvane with a version of the Perfvane which is free of defects. In case of defects of updated, upgraded or new versions (the aforementioned hereinafter each a “New Version”), the right of defect with regard to a New Version shall be limited to the new features of New Version of the Perfvane compared to the previous version release.
- Unless Andrey Dorokhov fails to repair or replace the Perfvane, the right of the Customer to terminate the contract due to an inability to use the Perfvane shall be excluded.
- The limitation period for all warranty claims shall be 12 months commencing with the first coming to show of the defect.
Limitation of Liability #
Andrey Dorokhov’s liability for damages caused by or related to the exercise of rights and obligations under this Agreement shall be excluded. The limitation of liability shall not cover
- damage from injury to life, body or health caused by Andrey Dorokhov;
- damages caused by Andrey Dorokhov that are a result of wilful intent or gross negligence;
- damage caused by Andrey Dorokhov as a result of slight negligence in the event of Andrey Dorokhov’s breach of an essential contractual obligation which is indispensable for the duly execution of the contract and thereby jeopardizes the achievement of the contract purpose and such damage is typically foreseeable at the time of the infringement;
- Andrey Dorokhov’s liability in the event of the assumption of a warranty if an obligation infringement covered thereby triggers Andrey Dorokhov’s liability.
- If the liability of Andrey Dorokhov is excluded or restricted, this also applies to the personal liability of its employees, representatives, and agents.
- Liability under the Product Liability Act shall remain unaffected.
- Andrey Dorokhov will not be liable hereunder by reasons of any failure to timely perform its services due to an event beyond its reasonable control.
Data protection, References and Confidentiality #
- Andrey Dorokhov may identify Customer as a customer of Andrey Dorokhov and display Customer’s name and logo solely for such purpose on its customer lists, its website, and its marketing and promotional materials provided that Customer may request that Andrey Dorokhov cease such use at any time upon written notice to Andrey Dorokhov.
Term and Termination #
- The Agreement runs for an indefinite time and will remain in effect until terminated by one of Parties in accordance with this section 11.
- The Parties may terminate this Agreement for any or no reason at their convenience with a 30 day notice to the end of each month. Termination may be issued in writing or by using the provided account closing mechanism, if provided by Andrey Dorokhov.
In addition, each party’s right to terminate this Agreement for a good cause remains unaffected. A good cause for termination of the Agreement by Andrey Dorokhov shall include, but is not limited to, the following:
- a serious breach of the obligations arising from this Agreement by the Customer;
- a serious breach of contract leading to the loss of mutual trust or renders the continuation of this Agreement in consideration of the purpose of the Agreement unreasonable;
- an attempt a denial of service attack on any of the Services by the Customer or any attempt to hack or break any security mechanism on any of the services;
- determination that the Customer’s use of the services poses a security or service risk to Andrey Dorokhov, or to any user of services offered by Andrey Dorokhov;
- inappropriate use of the Perfvane and/or services;
- a major change in the working of GitHub that makes it unreasonable for Andrey Dorokhov to adapt the Perfvane accordingly;
- a major change in the co-operation of GitHub and Andrey Dorokhov that makes the further offering of Andrey Dorokhov unreasonable for Andrey Dorokhov;
- an application for the initiation of insolvency proceedings concerning the Customer, as well as the refusal to open insolvency proceedings for lack of assets, or the issue of a declaration in lieu of an oath, or any similar proceedings.
- In case of the termination of the Agreement, any rights of use granted to Customer for the Perfvane shall expire immediately and Customer shall cease to use the Perfvane.
Disputes, Applicable Law, Notices #
- The parties agree that the courts of the seat of Andrey Dorokhov shall have exclusive jurisdiction to settle any dispute arising out of this Agreement.
- Notices made by Andrey Dorokhov to the Customer may be posted on the Website and/or send to the email-address specified by the Customer when registering or to any updated email-address the Customer provides. Notices to Andrey Dorokhov must be directed to firstname.lastname@example.org and/or Andrey Dorokhov, Russia, Smolensk, Torfoprepriyatie, 62, 3.
- The official text of this Agreement and any annexes attached here to and any notices given here shall be in English.
Final provisions #
- This Agreement, together with any documents referred to in it, or expressed to be entered into in connection with it, constitutes the whole agreement between the Parties concerning the subject matter of this Agreement.
- The Customer may set off only legally, binding and recognized claims. The rights and obligations arising from this Agreement are generally not transferable. However, Andrey Dorokhov may transfer this Agreement with all rights and obligations to a company of its choice.
- If any provision of this Agreement is or later becomes invalid, or contains omissions, the validity of the other provisions shall remain unaffected. The parties shall agree upon a new provision, which shall resemble the invalid provision as closely as possible in purpose and meaning considering the interests of the parties and the legal regulations, to replace the invalid provision. In the event of an omission in the agreement, a provision shall be agreed upon which shall correspond with that which would have been agreed, pursuant to the purpose and meaning of the agreement, if the matter had been considered by the parties when the agreement was formed.
- These General Terms and Conditions may be modified by Andrey Dorokhov at any time. Andrey Dorokhov will inform the Customer via email that these General Terms and Conditions have altered by including the new version and/or description of the alteration(s) in this email. If the Customer does not expressly objects in writing within a month from the notification of change to these General Terms and Conditions this is deemed to be his acceptance of the change(s). The Customer will expressly be informed about this circumstance and the significance of his silence in the notification of change.