This on-premises Terms of Service licence agreement (this “Agreement”) between Application Performance Ltd, a UK Company, with its principal place of business at Centaur House, Ancells Road, Fleet, GU51 2UJ (“AP”) 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”).

1.1      DEFINED TERMS.  Any terms not defined in this Agreement but defined in the Order Form shall have those definitions.

1.1. “Client’s Database Environment” is the database, query language and servers owned by Client which Client desires to monitor with the DBmarlin service.

1.2. “Service”is 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.

1.3. “Order Form” means the document signed by both parties setting forth prices and quantities and/or duration of usage for Client’s purchase of the DBmarlin Service.

1.4. “Support Services” are set forth in Exhibit A hereto and invoiced at the cost set forth in the Order Form.

2       TERM. 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 first.

3       INTELLECTUAL PROPERTY

3.1      Licence. 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 asnot intended or in a way that violates any applicable national, local or international laws or regulations, or the rights of any third party.

3.2      Ownership.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.

3.3      Restrictions on Use. 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.

3.4      Evaluation Use. If 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.

3.5      No Trademark Licence. 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.

4       CONFIDENTIAL INFORMATION AND CLIENT DATA

4.1      Confidential Information. By virtue of this Agreement, either party may come into 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.

4.2      Exceptions. 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 confidentiality.

4.3      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 expense.

4.4      Client Data.  “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.

5       DISCLAIMER OF WARRANTY. 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.

6       INDEMNIFICATION.

6.1      By AP. 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.

6.2       Indemnification Requirements. 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.

7       LIMITATION OF LIABILITY.

7.1      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 such damages.

7.2      Limitation of Direct Damages. The 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.

8       FEES AND PAYMENTS. 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.

9       TERMINATION. This Agreement shall continue to be in force until terminated by either party in accordance with this Section 9.

9.1      Termination for Breach. If either 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.

9.2      Effect of Termination. Upon 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.

10     MISCELLANEOUS.

10.1   Governing Law. 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.

10.2   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.

10.3   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.

10.4   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.

10.5   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.

10.6   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.

10.7   This Agreement may be executed in counterparts, which taken together shall be considered one original Agreement.

10.8   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 termination.

10.9   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.

10.10  Except 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.

EXHIBIT A
Service Support and Maintenance

1)    Definitions.

a)    “Community Support”.  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 www.dbmarlin.com/support . 

b)    “Premium Support”.  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.

c)     “Documentation” 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.

d)    “Supported Release”.  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 ( https://download.dbmarlin.com ) will also be Supported Releases.

e)    “Error” 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.

f)      “First 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.

g)    “Respond” 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.

h)    “Resolve” means 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.

i)      “Second 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 on-site technical support at Client’s premises/Designated Site(s where appropriate and agreed.

j)      “Severity 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 operations.

k)     “Severity Level Two Incident” means an Error that results in a lack of the Service functionality and materially degrades significant aspects of Client’s business operations.

l)      “Severity Level Three Incident” means an Error that impairs the performance of the Service, but does not substantially affect Client’s business operations.

m)   “Normal Business Hours” means between 08:00 – 18:00 UK local time, Monday to Friday, excluding any national or public holidays.

2)    Scope of Services. During the Term AP will use commercially reasonable efforts to Resolve any Incidents reported by Client as follows:

a)    AP, in its reasonable discretion, will determine the amount of time it will need to spend to attempt to Resolve any specific Incident;

b)    AP will initially provide First Line Support to Client to attempt to Resolve the reported Incident; and

c)     AP will subsequently provide such, if any, Second Line Support as AP, in its reasonable discretion, deems necessary to attempt to Resolve the Incident.

3)    Response Time. During the Term AP shall use commercially reasonable efforts to Respond to Incidents reported by Client within the following timeframes:

a)    for a Severity Level One Incident, within 4 hours of AP’s receipt of Client’s notification during Normal Business Hours and

b)    for a Severity Level Two Incident, within 12 hours of AP’s receipt of Client’s notification during Normal Business Hours and

c)     for a Severity Level Three Incident, within 24 hours of AP’s receipt of Client’s notification during Normal Business Hours

4)    Remote Services. 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 systemsto collect 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 Client’s information will be treated in accordance with AP’s privacy policy, as amended from time to time, which can be viewed at: www.dbmarlin.com/privacy-policy or a successor website address.

5)    Optional Support Services. 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.

6)    Maintenance Releases. 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 ( https://download.dbmarlin.com ).

7)    Service Changes. 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.

8)    Subcontractors. AP may, in its sole discretion, perform any of the Services by or through third parties (each, a “Subcontractor“) or any other AP Personnel.

9)    Limitations.

a)    Incidents. AP 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.

b)    Response Time and Resolution. AP will use commercially reasonable efforts to: (a) Respond within the applicable Response time provided in Section 3; and (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 Resolved.

c)     Effect of 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“).

10)Exceptions. AP 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 Exception“):

a)    the Service, or the media on which it is provided, that is modified or damaged by Client or any third party;

b)    any 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;

c)     any 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 the Documentation;

d)    any Client Failure, including Client’s failure to promptly install any Maintenance Release that AP has previously made available to Client;

e)    the operation of, or access to, Client’s or a third party’s system or network;

f)      any beta software, that AP makes available for testing or demonstration purposes, temporary software modules or software for which AP does not receive a licence fee;

g)    any breach of or noncompliance with any provision of this Agreement by Client or any of its Representatives; or

h)    any Force Majeure Event (including abnormal physical or electrical stress).

11)Client Obligations.

a)    Notification. Client shall promptly notify AP of any Error and provide AP with reasonable detail of the nature and circumstances of the Error.

b)    Compliance. Client shall comply with all terms and conditions of this Agreement and the Agreement.

c)     Use. Client shall use the Service solely in accordance with the terms and conditions set forth in this Agreement.

d)    Environment. Client 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.

e)    Access. In 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, including:

i)      reasonable, uninterrupted access, both physical and virtual, to the Service and Client’s premises, systems, networks and facilities;

ii)     a safe working environment;

iii)    reasonable access to appropriate Client personnel, including database, network, systems, operations and applications personnel; and

iv)   all necessary authorisations and consents, whether from third parties or otherwise, in connection with any of the foregoing.

f)      Data Back-up. 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.

g)    Technical Contact. 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.

h)    Information. Client 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 Third-Party Materials.

i)      Supported Release. 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 Release.