MyDBA & SQLBenchmarkPro Terms of Use

Introduction

Welcome to the SQLBenchmarkPro SQL Server performance monitoring service (the “Service”), a service of MyDBA Pty Ltd. (“MyDBA”, “we”, or “us”).

Please read these Terms of Use carefully, as they contain the legal terms and conditions that govern your use and access of the Service. This page contains the Terms and Conditions of Service (the "Terms of Use") and a reference to the Privacy Policy (the Terms of Use and Privacy Policy, together are referred to as the “Agreement”) governing your use of the Service, including the MyDBA website located at http://www.mydba.com and https://portal.mydba.com, and all associated links to these sites by MyDBA (collectively, the "Site"), any off-line software components which may be used in delivering the Service (collectively, the "Software"), and all data, text, graphics, sound or video clips, flash animations, user interfaces, visual interfaces, trademarks, logos, and computer code (collectively, the "Content"), including but not limited to the design, structure, selection, coordination, "look and feel" and arrangement of such Content. The Site, the Software, and the Content (collectively, the "Service") are the property of MyDBA Pty Ltd. ("MyDBA") and its licensors, and are protected by applicable intellectual property rights.

MyDBA reserves the right to update and change the Terms of Use from time to time by posting an updated version of such Terms of Use at http://www.mydba.com/terms no later than thirty (30) days prior to the posted effective date of such update. If you continue to use or access the Service after the posted effective date, you hereby agree to the updated Terms of Use. Unless MyDBA otherwise indicates, your use of any new features, changes, and enhancements to the current Service, including the release of new features and resources, shall be subject to the Terms of Use.

By signing up for an account and/or by clicking the "I accept" button and/or using the Service, You hereby acknowledge that You have read, understand, and agree to be bound by these Terms of Use either for Yourself or on behalf of Your employer or another entity. The term “You” refers to the individual or corporate end user that is specified in the registration information associated with such end user’s account for the service.

Account Terms

  1. You must provide your legal full name, a valid email address, and any other information requested during the account signup process in order to obtain an account. You must ensure that all account information remains complete and accurate.
  2. You must be a human. Accounts registered by “bots” or other automated methods are not permitted.
  3. You are responsible for maintaining the security of your account and password, and are responsible for all activities conducted using your account and password. You may not use anyone else's SQLBenchmarkPro ID, password or account at any time without the express permission and consent of the holder of that ID, password or account. MyDBA cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
  4. By providing us with your email address, you agree to receive all required notices electronically, to that email address. MyDBA will use this email address in accordance with our Privacy Policy which can be found at 4. www.mydba.com/privacy.
  5. You may not use the Service for any illegal or unauthorized purpose. Without limiting the foregoing, you may use the Service only in accordance with the use parameters of your account’s plan level (“Plan Level”), including host, instance and user limitations, and you agree not to attempt to circumvent such limitations.

Payment and Pricing Terms

Signing up for a SQLBenchmarkPro account is free. Access and use of the Service is provided at no charge. However, MyDBA reserves the right to charge for the Service or any portion thereof, modify the pricing of, add to, or discontinue the Service or any portion thereof without prior notice.

From time to time MyDBA makes available certain value-added services for a fee. Should you elect to use such services, you agree to pay the required fee as specified in the services registration and purchase pages. If you elect not to pay any fees charged by MyDBA, MyDBA shall have the right to cease providing those services to you. MyDBA reserves the right to modify the pricing of these services at any time without prior notice.

Payment and pricing terms for the Service are set forth on MyDBA’s pricing information page available at SQLBenchmarkPro Plans , which is incorporated by reference into these Terms of Use.

Cancellation and Termination

  1. If the service requires a subscription fee, your account will automatically renew, unless we terminate it, or you notify us by telephone or via the contact information below of your decision to terminate the service.
  2. You will continue to be billed for the Service until MyDBA terminates your account in accordance with these Terms of Use or you properly cancel your account. You are solely responsible for properly cancelling your account.
  3. If you cancel the Service before the end of your current paid up period, your cancellation will take effect upon completion of the billing cycle that has already been paid. All fees and charges are non-refundable and there are no refunds or credits for partially used periods
  4. If payment is made via a purchase order or check, you agree to remit the payment before the date specified on the invoice.
  5. MyDBA, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Service, or any other MyDBA service, for any reason at any time. Such termination of the Service will result in the suspension or deletion of your Account or your access to your Account. MyDBA reserves the right to refuse service to anyone for any reason at any time.

Modifications to the Service and Prices

  1. MyDBA reserves the right at any time and from time to time to modify, suspend, restrict or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice or liability.
  2. Prices of all Services, including but not limited to subscription plan fees to the Service, are subject to change upon 30 days notice from MyDBA. Such notice may be provided at any time by posting the changes to the MyDBA Site (https://portal.mydba.com or http://www.mydba.com) or the Service itself. If you do not agree to such pricing change, you may cancel your account during such 30-day period. By continuing to use the Service after the effective date of such pricing change, you hereby agree to such pricing change.
  3. MyDBA shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.

Personal, Internal Business or Limited Commercial Use Only

The Service is made available to you for: a) your personal use; b) your internal business use; or c) if you are a Managed Service Provider ("MSP"), or Value Added Reseller (“VAR”), use in the commercial support of your customers, in compliance with all applicable laws, rules and regulations. If you want to make any other commercial use of the Service, including but not limited to selling or distributing the Service for payment, you must enter into a written agreement with MyDBA or obtain MyDBA’s written permission in advance.

Except as expressly provided in these Terms of Use, no part of the Service, no part of the Site and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, or distributed in any way (including "mirroring" and "framing") to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, without MyDBA’s express prior written consent.

General Conditions

  1. Your use of the Service is at your sole risk, and MyDBA makes no representations that the Service will accurately diagnose or correct every performance problem of monitored SQL Server instances.
  2. Technical support enquiries for registered users can be submitted by logging into the SQLBenchmarkPro online portal, and submitting a request via the online Helpdesk menu. Support enquiries for non-registered users can be submitted via the Contact Us section of our website. Technical support is provided during the hours of 08:30 – 17:30 AEST, Monday through Friday.
  3. You understand that MyDBA uses third party vendors and hosting partners to provide the necessary hardware, software, networking, and related technology required to run the Service. MyDBA is not responsible for any failures attributable to third parties.
  4. You must not modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service, SQLBenchmarkPro, or any other MyDBA service.
  5. You must not use the Service in connection with any other commercial endeavours except those that are specifically allowed, endorsed or approved by MyDBA. Except for distributions for the use described above to your employees or independent contractors in compliance with these Terms of Use, you may not distribute or otherwise commercially exploit or make available to any third party the Service, or any part thereof, in any way.
  6. You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
  7. You may not probe, scan or test the vulnerability of the Service or any network connected to the Service, nor breach the security or authentication measures of the Service or any network connected to the Service. You may not reverse look-up, trace or seek to trace any information on any other user of or visitor of the Service, or any other customer of MyDBA, including any accounts not owned by you, to its source, or exploit the Service or any service or information made available or offered by or through the Service, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information, as provided for by the Service.
  8. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, distribute in any way (including "mirroring" and "framing") to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, or access to the Service without the express written permission by MyDBA.
  9. You may not change, reorganize, modify, copy, reverse engineer, or create derivative works from the Service or any part thereof, in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, (c) remove, change or replace any MyDBA’s trademarks, logos, copyrights or any other branding elements, (d) hide, obscure, disable or otherwise render inoperable any portion of the user interface, or (e) copy any ideas, features, functions or graphics of the Service. If you wish to request MyDBA’s written approval to do any of the above, please contact MyDBA via the contact information provided below
  10. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Service or any transaction being conducted on the Service, or with any other person's use of the Service. You may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to MyDBA on or through the Service or any service offered on or through the Service. You may not pretend that you are, or that you represent, someone else, or impersonate any other individual or entity. You may not use the Service or any Content for any purpose that is unlawful or prohibited by these Terms of Use, or to solicit the performance of any illegal activity or other activity which infringes the rights of MyDBA or others.
  11. You may not copy or use personal identifying or business contact information about other users or Members of the Service without their permission. Unsolicited e-mails, mailings, telephone calls, or other communications to individuals or companies whose contact details you obtain through the Service are prohibited.
  12. You understand that the technical processing and transmission of the Service may be transferred unencrypted over a network, and assume all risks related thereto. MyDBA shall not be liable to you for any liabilities arising from the operation of the Service over the Internet or other network.
  13. You must not transmit any worms or viruses or any code of a destructive nature.
  14. If the amount of data collected in providing your Service significantly exceeds the average amount of data collected (as determined solely by MyDBA) of other MyDBA customers at your subscription level, we reserve the right to immediately disable your account or throttle your Service until you can reduce your bandwidth consumption.

The service is provided on an “as is” and “as available” basis, and MyDBA expressly disclaims any warranties and conditions of any kind, whether express or implied, including but not limited to the warranties of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement. Without limiting the foregoing, MyDBA does not warrant that the service will meet your specific requirements, that the service will be uninterrupted, timely, secure, or error-free, that the results that may be obtained from the use of the service will be complete, accurate, or reliable, that the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your expectations, or that any errors in the service will be corrected.

Automatic Updates

The SQLBenchmarkPro Agent may communicate with MyDBA servers to check for available updates to the software, such as bug fixes, patches, enhanced functions, missing plugins and new versions (collectively, "Updates"). During this process, the SQLBenchmarkPro Agent sends MyDBA a request for the latest version information. By installing the SQLBenchmarkPro Agent you hereby agree to automatically request and receive Updates from MyDBA servers.

Some personal firewall programs may be configured in such a way as to prevent the SQLBenchmarkPro Agent from receiving these updates. If the computer on which you install SQLBenchmarkPro is so configured, it may be necessary for you to make an exception entry in the configuration of the personal firewall program to allow the SQLBenchmarkPro Agent to successfully install and receive these updates.

International Use

You shall abide by all applicable laws and regulations regarding use of the Service. MyDBA and its licensors make no representation that the Service is appropriate or available for use in any location. The Service is controlled and operated from within Australia. MyDBA makes no representations that materials contained within the Service are appropriate or available for use in other locations, and access to the Service from locations where such activity is illegal is prohibited. Those who choose to use the Service from other locations do so on their own initiative and are solely responsible for compliance with all applicable laws.

Software Licenses, Copyright and Content Ownership

All software (including the SQLBenchmarkPro agent) that is furnished to you in connection with the Service is provided subject to the terms of a separate end-user license agreement that accompanies such software. You agree to abide by the terms of such end-user license agreement in your use of such software.

The Service (including all of its software and technology components), together with all intellectual property rights therein, are the exclusive property of MyDBA and its suppliers. The look and feel of the Service is copyright ©2013-14 MyDBA Pty Ltd. All rights reserved. You may not duplicate, copy, or reuse any portion of the HTML/CSS or visual design elements of the Service without express written permission from MyDBA. Other trademarks, service marks, and trade names that may appear on the Site are the property of their respective owners.

Service Level Commitment

MyDBA is committed to providing our customers with a great experience with our products. SQLBenchmarkPro is provided using the software-as-a-service model. In this model, the software you use to manage your monitoring is comprised of two components: The SQLBenchmarkPro Configuration Utility, which is a small locally installed application used to add, edit and remove target servers to be monitored by the SQLBenchmarkPro Agent Service; and the SQLBenchmarkPro Agent Service which is a windows service that connects to each SQL Server instance to be monitored, collects performance and configuration data, parses performance data to remove business-specific data and sends the cleansed data collected from your environment to our hosted storage and analytics service at https://portal.mydba.com.

The service level within MyDBA’s control is the Availability of the Service. The Service shall be considered Available so long as customers are able to log in to the SQLBenchmarkPro user interface (https://portal.mydba.com) and see SQL Instance and Database performance data. We endeavour to make the Service Available at all times with the exception of very short maintenance windows that occur periodically throughout the month.

Internet Delays

MyDBA’s SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MYDBA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT MYDBA SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MYDBA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING ANY SUCH DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE; THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; TERMINATION OF YOUR ACCOUNT; OR ANY OTHER MATTER RELATING TO THE SERVICE.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, MYDBA’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATING TO THE SERVICE (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION) WILL AT ALL TIMES BE LIMITED TO THE GREATER OF FIFTY AUSTRALIAN DOLLARS (AUD $50) OR THE AMOUNTS YOU PAID TO MYDBA IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.

Indemnification

You agree to defend, indemnify, and hold harmless the MyDBA Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement or your access to, use or misuse of the Content or Site. MyDBA shall provide notice to you of any such claim, suit, or proceeding. MyDBA reserves the right to assume the exclusive defence and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting MyDBA’s defence of such matter.

Miscellaneous

This Agreement constitutes the entire agreement between you and MyDBA and govern your use of the Service, superseding any prior understandings or agreements, written or oral, between you and MyDBA (including, but not limited to, any prior versions of the Terms of Use). Any waiver of any provision of this Agreement will be effective only if in writing and signed by MyDBA

Feedback

If you have comments on the Service or ideas on how to improve it, please contact us via the contact information provided below. Please note that by doing so, you also grant MyDBA and third parties permission to use and incorporate your ideas or comments into the Service (or third-party software or content) without further compensation or approval.

In addition, our Privacy Policy is incorporated into, and considered a part of the MyDBA Terms of Use.

Contacting us

If at any time you would like to contact us with your views about our privacy practices, or with any enquiry relating to your personal information, you can do so by sending an email to us at http://www.mydba.com/about/contact-us or by contacting us at MyDBA Pty Ltd, 1902 / 572 St Kilda Road, Melbourne, VIC 3004 Australia. You are entitled to ask for a copy of the information we store about you (for which we may charge a small fee).

These Terms of Use were last updated on April 11, 2014.

You can review the most current version of the Terms of Use at any time at: http://www.mydba.com/terms. If you have any questions about the Terms of Use please contact us via the contact information provided above.