on-premises Terms of Service licence agreement (this “Agreement”) between
Application Performance Ltd, a UK Company, with its principal place of business
House, Ancells Road, Fleet, GU51 2UJ
and the end user referenced in the Order Form (as defined below) (“Client”) is
effective as of the date the initial order form is executed (the “Effective Date”).
Any terms not defined in this Agreement but
defined in the Order Form shall have those definitions.
is the database, query
language and servers owned by Client which Client desires to monitor with the DBmarlin
the DBmarlin database monitoring service and includes Agents and Sensors, as
described in the DBmarlin documentation located at https://docs.dbmarlin.com
(“Documentation”), installed in proximity to, and to monitor the Client’s
Database Environment for collecting database performance metric data as well as
any knowledge engine or artificial intelligence used for analysing the Client’s
database performance data. AP may update or change the Service with no prior
notice to you, and you may be required to install updates to the Service,
Agent, Sensors or other components installed on your computers to continue to
receive the Service.
means the document signed by both parties setting forth
prices and quantities and/or duration of usage for Client’s purchase of the
are set forth in Exhibit A hereto and invoiced at the cost
set forth in the Order Form.
The term of this Agreement shall commence on the Effective Date and shall
continue until terminated pursuant to the provisions of Section 9 of these
Terms and Conditions or as defined in the relevant Order Form, whichever comes
Subject to this Agreement, AP hereby grants to Client a non-exclusive,
revocable, non-sublicensable, non-transferable licence to access and use the
Service during the Term solely for its internal business operations. Client is
solely responsible for providing all telecommunications, computer and other
equipment necessary for accessing, enabling and delivering the Service. AP
retains the right, in its sole discretion and with no notice to Client, to
terminate this agreement if AP has a good faith belief that Client has
materially breached the terms of this Agreement, any AP policies, or is using
the Service as
not intended or in a way that violates any applicable national, local
or international laws or regulations, or the rights of any third party.
AP retains all rights not expressly granted to Client in this
Agreement. Client acknowledges and agrees that AP retains all rights, title and
interest in and to the Service, including without limitation copyrights, patent
rights, trademarks and trade names, and trade secrets.
Except as otherwise specifically permitted under this
Agreement, Client shall not, nor will Client permit any Third Party, defined as
an individual not directly employed or contracted by the Client or an
organisation that is not majority owned by the Client’s organisation, to (i)
copy, modify, distribute, sell, assign, pledge, sublicense, lease, loan,
deliver or otherwise transfer the Service or any of its components to any third
party in whole or in part, provided that Client may copy AP’s documentation as
needed for internal business use; (ii) derive or attempt to derive the source
code of any portion of the Service by any means; (iii) reverse engineer,
decompile, disassemble, or translate the Service or any part thereof; (iv)
upload, post, mail, publish, transmit or distribute in any way the Service or any
of its components; (v) make available through the Service any material or
information that infringes the intellectual property rights, rights of
publicity, or right of privacy of any entity or person, or impersonates another
person including without limitation an AP employee.
AP provides Client with any software on a no-fee or beta evaluation basis (“Beta
Software”), then the Licence Term is for the period enabled by the licence key
for the Beta Software. AP shall have the right to terminate, downgrade, limit
or otherwise modify the Beta Software at any time without notice or
compensation, and no warranty, indemnity, availability, Maintenance or Support
obligations of AP will apply to Beta Software. Client may use the number and
type of licences enabled by Client’s specific licence key but only to test and
evaluate the Beta Software for its intended purpose. Client agrees to provide
feedback related to the Beta Software as reasonably requested by AP. Client
grants to AP, without charge, the fully paid-up, perpetual, sublicensable right
to exploit such feedback for any purpose. The provision of Beta Software is not
a guarantee of future product features or the availability of any future
product and should not be relied upon in making any purchasing decisions. The
Beta Software is subject to the terms of clause 3.3 to the same extent as the Service.
No licence, right or interest in the trademarks, trade
names or service mark of either party or its licensor is granted hereunder,
except as either party may agree in writing.
INFORMATION AND CLIENT DATA
. By virtue of this Agreement, either party may come
contact with the other party’s non-public or proprietary information
(“Confidential Information”). Confidential Information shall include, without
limitation, any information or materials supplied to, obtained by or observed
by either party or its employees, agents, consultants or subcontractors
including proprietary software, source code documents, financial information,
documentation, data, benchmark tests, specifications, customers, marketing
strategies, business practices and any other proprietary information supplied
to one party by the other and identified as proprietary or confidential, user
identification and passwords, and account information. The terms of any Order Form
and these Terms and Conditions are also considered Confidential Information.
Each party shall hold the Confidential Information of the other party in strict
confidence and not disclose the Confidential Information to third parties nor
use it for any purpose not authorised herein, nor permit access to Confidential
Information, except to those of its employees or authorised representatives
having a need to know and who are bound by confidentiality obligations at least
as restrictive as those contained herein. Upon learning of any unauthorised use
or disclosure of a disclosing party’s Confidential Information, the other party
shall immediately notify the disclosing party. Client Data, as defined in
Section 4.4, shall be considered Client’s Confidential Information.
The above restrictions of Section 4.1 shall not apply to: (i) information that
becomes, through no act or fault of the party receiving the Confidential
Information (“Receiving Party”), publicly known or generally known in the
relevant industry; (ii) information received from a third party not obligated
under a confidentiality agreement with the party disclosing the Confidential
Information (“Disclosing Party”); (iii) information independently developed by
either party without reference to the Confidential Information; (iv)
information required to be disclosed by law or court or governmental agency
order, provided the party gives prompt notice of such requirement to the other
party, or; (v) disclosures to a professional advisor under a duty of
Ownership and Return of Confidential Information.
All Confidential Information shall remain the property of
the Disclosing Party. Upon written request of the party disclosing the
Confidential Information (“Disclosing Party”), the other party shall promptly
return to the Disclosing Party all documents and other tangible materials
representing the disclosing party’s Confidential Information, together with all
copies (including both physical and electronic) thereof, at Disclosing Party’s
“Client Data” is data
collected both from Client’s Database Environment’ and the Service, residing in
the Client’s data centre, and may include performance data pertaining to the
Client’s Database Environment, Service usage data, and Service quality
management data. Title to ownership of all Client Data shall remain with
Client. Client may opt-in to provide AP with performance data pertaining to the
Service, and to transmit that performance data to AP. By opting-in, Client
hereby grants AP a worldwide, exclusive, irrevocable licence to use and analyse
that data, for the purpose of improving the DBmarlin Service, and to assist the
Client in operating the Service. Upon request by Client made within thirty
(30) days of the effective date of termination, AP will delete all Client Data.
. THE DBmarlin SERVICE, ACCESS THERETO, AND ANY SERVICES PROVIDED
HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, AND AP AND ITS AFFILIATES AND
AGENTS: (A) DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ANY AND ALL WARRANTIES,
WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY
WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (B) DO NOT
WARRANT THAT ACCESS TO THE DBmarlin SERVICE WILL BE UNINTERRUPTED, ERROR-FREE,
OR SECURE, OR THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE
THROUGH THE DBmarlin SERVICE IS FREE OF VIRUSES (ALTHOUGH AP REPRESENTS THAT IT
WILL USE COMMERCIALLY REASONABLE EFFORTS TO AVOID VIRUSES) OR OTHER HARMFUL
CONTENTS OR COMPONENTS; (C) SHALL IN NO EVENT BE LIABLE TO CLIENT OR ANYONE
ELSE FOR ANY INACCURACY, ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE
(INCLUDING LOSS OF DATA) CAUSED IN WHOLE OR IN PART BY, OR FAILURES, DELAYS OR
INTERRUPTIONS OF THE DBmarlin SERVICE. SOME JURISDICTIONS MAY NOT ALLOW THE
EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES. IN SUCH JURISDICTIONS, AP’s
LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
. AP agrees to indemnify, defend and hold
harmless Client from any third party suits, losses, claims, demands,
liabilities, costs and expenses (including reasonable legal and accounting
fees) that Client may sustain or incur arising from any actual or asserted
infringement or misappropriation by AP of any patent, copyright, trademark or
trade secret of a third party. In the event that the Service is, or in AP’s
sole opinion only after the assertion of a third party claim is likely to be,
enjoined due to the type of infringement described in this Section 6, AP, at
its option and expense, may (a) replace the applicable Service with
functionally equivalent non-infringing technology or (b) obtain a licence for
Client continued use of the Service, or, if the foregoing alternatives are not
reasonably available to AP, (c) terminate the Agreement and immediately refund
all sums prepaid hereunder. The foregoing provisions of this section state the
entire liability and obligations of AP and the exclusive remedy of Client, with
respect to any alleged or actual infringement of patents, copyrights, trade
secrets, trademarks or other intellectual property rights by the software.
. In claiming
any indemnification under this Section 6, the indemnified party shall promptly
provide the indemnifying party with notice of any claim that the indemnified
party believes is within the scope of the obligation to indemnify. The
indemnified party may, at its own expense, assist in the defence if it so
chooses, but provided that the indemnifying party promptly acknowledges its
indemnity obligation hereunder and undertakes defence of any applicable third
party claim, the indemnifying party shall control the defence and all negotiations
relative to the settlement of any such claim, provided further that it may not
make any admission on behalf of the indemnified party or agree to any liability
or payment which will not be made immediately and in full by the indemnifying
party without the indemnified party’s prior written consent. Any settlement
intended to bind the indemnified party shall not be final without the
indemnified party’s written consent, which consent shall not be unreasonably
withheld or delayed. A party’s indemnification obligations hereunder shall be
reduced to the extent the indemnified party fails to comply with this Section
6.2 or to cooperate reasonably in the defence of any indemnified claim
hereunder and such failure prejudices the defence of such claim.
Exclusion of Consequential Damages
. In no
event shall AP or AP’s suppliers be liable for any indirect, incidental,
special or consequential damages, including without limitation damages for loss
of profits, data or use, incurred by Client or any third party, whether in an
action in contract or tort, even if AP has been advised of the possibility of
Limitation of Direct Damages
aggregate and cumulative liability of AP and its suppliers for damages
hereunder, including in any trial period, shall in no event exceed the amount
of fees paid by Client for the previous six (6) months under this Agreement.
. All fees and amounts due to AP shall be set forth in one
or more Order Forms. All fees are non-refundable, and do not include any
applicable taxes, which are the sole responsibility of the Client. All payments
are due within thirty (30) days from the date of invoice. All payments not made
within such thirty (30) day period shall be Delinquent Payments. Late fees
shall accrue on all Delinquent Payments at the lesser of (i) 1.5% per month, or
(ii) the maximum rate allowed under law. If Delinquent Payments are not made
within fifteen (15) days of written notice to Client by AP, AP may, in its sole
discretion, immediately terminate the applicable Order Forms, and Client’s
access to the Service with no further liability to Client.
shall continue to be in force until terminated by either party in accordance
with this Section 9.
Termination for Breach.
party materially breaches this Agreement or an Order Form and such breach is
not cured within thirty (30) days after written notice is given to the
breaching party, then the other party may, by giving written notice to the
breaching party, terminate the applicable Order Form as of the end of such
thirty (30) day period or such later date as is specified in such notice of
termination. AP may also immediately terminate this Agreement pursuant to the
terms of Section 3.1.
Effect of Termination.
termination of any Order Form due to Client’s breach, Client shall pay all
amounts due to AP under all Work Orders and shall not be entitled to a refund
for any amounts already paid.
This Agreement will be
governed by and construed in accordance with the laws of England and Wales and
the courts of England will have exclusive jurisdiction to adjudicate any
dispute arising under or in connection with the Agreement.
This Agreement may not be assigned by either
party without the prior written approval of the other party and any purported
assignment in violation of this section shall be void; provided, however, that
either party may assign this Agreement in connection with the transfer,
directly or indirectly, of more than fifty percent (50%) of such party’s
outstanding voting securities or of all or substantially all of the assets or
business of such party (a “Change in Control”); provided, further, that AP may
assign this Agreement to any of its affiliates. Upon any assignment of this
Agreement by Client in connection with a Change in Control, any licences that
contain an “unlimited” feature will, with respect to Client or the successor
entity, as applicable, be capped at the number of authorised licensed units in
use immediately prior to such Change in Control.
All notices must be in writing and delivered
personally or sent by overnight courier service to the address indicated in the
Order Form, or such other address as either party may indicate by written
notice, and will be deemed effective upon the earlier of actual or two business
days after deposit with an overnight courier.
The provisions of this Agreement are
severable. If any one is held to be invalid, the invalid provision will be
replaced by a valid clause coming closest to the invalid clause’s intention.
In the event of any litigation arising out of
or in connection with this Agreement or its interpretation or performance, the
prevailing party shall be awarded reasonable attorneys’ fees and expenses,
court costs, and reasonable costs for expert and other witnesses attributable
to the prosecution or defence of that controversy or dispute.
This Agreement constitutes the entire,
exclusive and final statement of the agreement of the parties with respect to
this subject matter, and supersedes all prior and contemporaneous
representations, proposals, negotiations, discussions, and agreements between
the parties, whether oral or in writing. There are no intended third-party
beneficiaries under this Agreement.
This Agreement may be executed in
counterparts, which taken together shall be considered one original Agreement.
The provisions of Sections 3.3, 4, 5, and 7 shall survive
and the obligations thereof continue for a period of four (4) years following
Client agrees that AP may refer to Client by
its trade name and / or logo, and may briefly describe Client’s business, in
AP’s marketing materials and website.
for Client’s obligations to make payments as set forth in this Agreement, each party
shall be excused from performance for any period during which, and to the
extent that, it or its subcontractor(s) is prevented from performing any
obligation or service, in whole or in part, as a result of causes beyond its
reasonable control and without its fault or negligence. Such acts shall include
without limitation acts of God, strikes, lockouts, riots, acts of war,
epidemics, governmental laws and regulations imposed after the fact, fire,
communication line failures, power failures, earthquakes, floods or other
natural disasters (a “Force Majeure Event”). Delays in delivery or in meeting
completion dates due to Force Majeure Events shall automatically extend such
dates for a period equal to the duration of such events.
Service Support and Maintenance
. Clients of the Starter Edition, (as specified on the DBmarlin
website at https://dbmarlin.com/pricing) covering a single monitored database
instance only receive support from the DBmarlin community, rather than direct
from AP. This may be accessed through the DBmarlin website at
. Clients who purchase Premium Edition licences (as specified
on the DBmarlin website at https://dbmarlin.com/pricing) are entitled to make
use of the support services defined below.
means any and all manuals, instructions, specifications and other documents and
materials that AP provides or makes available to Client in any medium and which
describe the functionality, components, features or requirements of the
Service, including any one or more of the installation, configuration,
integration, operation, use, support or maintenance thereof.
. AP will release changes and updates to DBmarlin according to
its own release cycle. The latest release of DBmarlin will always be a
Supported Release. Any other releases made within 12 months prior to the
latest release, and remaining available on the DBmarlin download site (
also be Supported Releases.
means a reproducible failure of the Service to perform in substantial
conformity with the specifications set forth in the Documentation, whose origin
can be isolated to a single cause.
Line Support” means, in connection with the logging, identification,
diagnosis and correction of Errors, the provision of: (a) telephone/e-mail/chat
assistance; and (b) access to technical information on the DBmarlin website for
proper use of the Service.
means AP’s initial communication with Client, whether by telephone, e-mail or
otherwise, acknowledging Client’s request for Services in connection with a
specific Error. “Response” has a correlative meaning.
the identification of a solution or fix to a reported Error, by means of First
Line Support, Second Line Support or other means. This fix may be by means of
an already provided release, provision of a new release, correction of Client
Data, or by any other means agreed between AP and Client.
Line Support” means, in connection with the identification, diagnosis and
correction of Errors, the provision of: (a) telephone/e-mail/chat assistance;
(b) Remote Services; and (c) engineering expertise. This may involve
technical support at Client’s premises/Designated Site(s where appropriate and
Level One Incident” means an Error that causes the Service to not operate
as designed and has a critical impact on Client’s Database Environment and business
Level Two Incident” means an Error that results in a lack of the Service
functionality and materially degrades significant aspects of Client’s business
Level Three Incident” means an Error that impairs the performance of the
Service, but does not substantially affect Client’s business operations.
Business Hours” means between
08:00 – 18:00 UK local time, Monday
to Friday, excluding any national or public holidays.
During the Term AP will use commercially reasonable
efforts to Resolve any Incidents reported by Client as follows:
its reasonable discretion, will determine the amount of time it will need to
spend to attempt to Resolve any specific Incident;
initially provide First Line Support to Client to attempt to Resolve the reported
subsequently provide such, if any, Second Line Support as AP, in its reasonable
discretion, deems necessary to attempt to Resolve the Incident.
During the Term AP shall use commercially reasonable
efforts to Respond to Incidents reported by Client within the following
Severity Level One Incident, within 4 hours of AP’s receipt of Client’s
notification during Normal Business Hours and
Severity Level Two Incident, within 12 hours of AP’s receipt of Client’s
notification during Normal Business Hours and
Severity Level Three Incident, within 24 hours of AP’s receipt of Client’s
notification during Normal Business Hours
Client acknowledges and agrees that AP may provide Remote
Services to Client to assist in analysing and resolving any Incident. Client
agrees to provide AP with access to Client’s systems
diagnostic, technical and related information, including information about
Client’s computers, systems, network and any Third-Party Materials, relating to
or derived from Client’s use of the Service. Client acknowledges and agrees
that AP may collect, maintain, process and use
this information in the
course of performing the Services under this Agreement, provided that AP shall
only access, control and gather such information that it reasonably believes to
be necessary to assist in analysing and resolving an Incident. At all times
amended from time to time, which can be viewed at:
www.dbmarlin.com/privacy-policy or a successor website address.
AP, in its sole discretion, may provide Optional Support
Services to Client on Client’s request, at AP’s standard hourly rates then in
effect. The terms and conditions of this Agreement govern the provision of any
Optional Support Services delivered by AP to Client.
During the Term, AP will provide Client with all
Maintenance Releases under the terms and conditions set forth in the Agreement.
These will be made available on the DBmarlin download site at (
AP may, in its sole discretion, change any aspect of the
Service, provided that no such change materially reduces or otherwise has a
material adverse effect on (a) AP’s level of effort in performing the
Services; (b) AP’s obligation to provide the Services under this Agreement; or
(c) Client’s rights under this Agreement.
may, in its sole discretion, perform any of the Services by or through third
parties (each, a “Subcontractor“) or any other AP Personnel.
has the sole right to determine, in its reasonable discretion: (a) what
constitutes an Incident; and (b) when an Incident is deemed to be Resolved.
Time and Resolution.
AP will use commercially reasonable efforts to: (a)
Respond within the applicable Response time provided in
(b) Resolve an Incident, but does not guarantee that it will be
able to Respond within that specific time period or that any Incident will be
Client Failure or Delay.
AP is not responsible or liable for any
delay or failure of performance caused in whole or in part by any delay or
failure to perform any of Client’s obligations under the Agreement or this
Agreement in accordance with the respective terms and conditions of these
agreements (each, a “Client Failure“).
has no obligation to provide Services relating to Errors that, in whole or in
part, arise out of or result from any of the following (each a “Service
Service, or the media on which it is provided, that is modified or damaged by
Client or any third party;
operation or use of, or other activity relating to, the Service other than as
specified in the Documentation, including any incorporation in the Service of,
or combination, operation or use of the Service in or with, any technology
(including any software, hardware, firmware, system or network) or service not
specified for Client’s use in the Documentation;
negligence, abuse, misapplication or misuse of the Service other than by AP
Personnel, including any Client use of the Service other than as specified in
Client Failure, including Client’s failure to promptly install any Maintenance
Release that AP has previously made available to Client;
operation of, or access to, Client’s or a third party’s system or network;
software, that AP makes available for testing or demonstration purposes,
temporary software modules or software for which AP does not receive a licence
breach of or noncompliance with any provision of this Agreement by Client or
any of its Representatives; or
Majeure Event (including abnormal physical or electrical stress).
shall promptly notify AP of any Error and provide AP with reasonable detail of
the nature and circumstances of the Error.
shall comply with all terms and conditions of this Agreement and the Agreement.
shall use the Service solely in accordance with the terms and conditions set
forth in this Agreement.
shall set up, maintain and operate in good repair and in accordance with the
Documentation all environmental conditions and components, including all
networks, systems and hardware, in or through which: (a) the Service operates;
and/or (b) the Client accesses or uses any of the Services.
connection with the performance of the Services, Client shall provide AP
Personnel with all such cooperation and assistance as they may reasonably
request, or otherwise may reasonably be required, to enable AP to perform its
obligations (including the provision of the Services), and exercise its rights,
under and in accordance with the terms and conditions of this Agreement,
uninterrupted access, both physical and virtual, to the Service and Client’s
premises, systems, networks and facilities;
access to appropriate Client personnel, including database, network, systems,
operations and applications personnel; and
necessary authorisations and consents, whether from third parties or otherwise,
in connection with any of the foregoing.
Client agrees to back up all data, files and information
prior to the performance of any Services and hereby assumes sole responsibility
for any lost or altered data, files or information.
Client shall designate and maintain throughout the Term at
least one, and preferably two individuals to serve as primary point(s) of
contact for day-to-day communications, consultation and decision-making
regarding the Services (each, a “Technical Contact“). The Technical
Contact(s) shall be the sole contact(s) between Client and AP in connection
with day-to-day matters relating to the provision of Services and be
responsible for reporting Incidents, providing day-to-day consents and
approvals on behalf of Client, and communicating with and providing timely and
accurate information and feedback to AP in connection with the Services. Client
shall ensure its Technical Contact(s) have the requisite organisational
authority, skill, experience and other qualifications to perform these duties.
Client shall use commercially reasonable efforts to maintain the same Technical
Contact(s) in place throughout the Term and provide at least 10 days’ prior
written notice to AP of any replacement or change in the name or contact
information of any Technical Contact
shall provide AP with all information reasonably requested by AP from time to
time relating to Client’s use of the Service, Services or Deliverables,
including information on Client’s hardware, network, systems and any related
Except as otherwise specified in this Agreement, Client
must run a Supported Release level of the Service that AP has made available to
its Clients. Client shall install Maintenance Releases within a timely manner,
as they are made available by AP, to ensure that Client remains on a Supported