END USER SOFTWARE LICENSE AND MAINTENANCE AGREEMENT
THIS SOFTWARE LICENSE AND MAINTENANCE AGREEMENT IS AN AGREEMENT BETWEEN YOU (“LICENSEE”) AND SQLSTREAM, INC. (“SQLSTREAM”).
SQLSTREAM IS WILLING TO GRANT A LICENSE TO YOU FOR USE OF THE SOFTWARE ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, SQLSTREAM IS NOT WILLING TO GRANT A LICENSE FOR THE SOFTWARE TO YOU.
THE MAINTENANCE TERMS WILL BE DEEMED ACCEPTED BY YOU AND WILL ONLY APPLY IF AND WHEN YOU PAY THE APPLICABLE MAINTENANCE FEES FOR THE SOFTWARE YOU HAVE LICENSED.
SECTION 1 – DEFINITIONS
“Agreement” shall mean this Software License and Maintenance Agreement (including its Appendices) together with the Order.
“Documentation” shall mean a functional description of the Software, directions for installation, verification of installation and use of the Software, and any other explanatory material necessary for a user to perform all of the functions of the Software.
“Order” shall mean any order issued by Licensee to SQLstream or its reseller, indicating the licensed Software and Maintenance Services (as defined in Appendix 1).
“Software” means (a) SQLstream’s software products, in object form only, distributed with this Agreement, (b) any error correction and update provided by SQLstream hereunder, and (c) related Documentation. If the Software requires a valid license key, Licensee must obtain such key, which is available only from SQLstream or its reseller.
SECTION 2 – PURPOSE
SQLstream grants and provides to Licensee, which accepts, a limited right and license to use the Software under the conditions and within the limits specified under Section 3 hereof, subject to Licensee’s compliance with the terms and conditions of this Agreement.
SECTION 3 – LICENSE GRANT
3.1 License Grant. SQLstream grants to Licensee a personal, non-exclusive, non-transferable license, without the right to sublicense, to use the Software only for Licensee’s internal use. This license grant is subject to Licensee’s having at all times a current and fully paid up Maintenance Services order form with SQLstream as set forth in Section 4 below. This license to use the Software is expressly limited to those hardware and software platforms, number of processors, hardware and software architectures, functionalities, storage capacities, and servers specified in the Order issued by Licensee and accepted by SQLstream. Licensee acknowledges and agrees that its license to use the Software is also limited to that part of the Software that is accessible through the license key issued to Licensee by SQLstream.
3.2 License Restrictions. The rights of Licensee in the Software are limited to those expressly granted in Section 3.1 above. SQLstream reserves all other rights, title and interest in and to the Software that are not expressly granted to Licensee under this Agreement. In particular, Licensee shall have no right to: (i) reproduce the Software, except for reasonable and justifiable back-up copies, which may not be used unless the version from which it was copied is damaged or destroyed; (ii) assign, transfer, sublicense or otherwise distribute the Software to any third party; (iii) correct, modify, adapt or translate the Software; (iv) provide the Software or make its functionalities available to third parties as an application services provider or service bureau, or by hosting, time sharing or providing similar types of services; or (v) develop its own license keys or attempt to bypass or otherwise defeat the license keys (if any) for the Software.
Ownership of Software. The Software and all intellectual property rights therein are and will remain the sole and exclusive property of SQLstream and its licensors. Licensee will reproduce the intellectual property rights notices of SQLstream and its licensors on any copy of the Software, and shall not alter, remove or obscure such notices.
3.4 Source Code. Licensee does not acquire any right to the source code of the Software. Licensee agrees not to disassemble, decompile or reverse engineer the Software, or otherwise attempt to gain access to the source code of the Software, or permit any third party to do so.
SECTION 4 – MAINTENANCE
SQLstream and/or its reseller will provide Maintenance Services (as that term is defined in Appendix 1) to Licensee on the terms contained in Appendix 1 of this Agreement if Licensee submits a signed SQLstream maintenance order form to SQLstream or its reseller and makes the required periodic payments for maintenance as set forth in the order form.
SECTION 5 – AUDIT
For the Term of the Software license, but in no event more than once per calendar year, and upon at least thirty (30) days notice, SQLstream or its reseller may audit Licensee during regular business hours to confirm that Licensee’s use of the Software is in compliance with the terms of this Agreement.
SECTION 6 – CONFIDENTIALITY
Licensee acknowledges that it will receive information and materials (including the Software) from SQLstream and that all such information and materials are and will be confidential and proprietary information of SQLstream (“Confidential Information”). However, Confidential Information will not include any information that (i) is received by Licensee from a third party without restriction on use or disclosure, (ii) SQLstream gives to third parties without restriction on use or disclosure, (iii) is already in the public domain, or (iv) is previously known to the Licensee or independently developed by Licensee without reference to or use of SQLstream Confidential Information and without breach of any confidentiality obligation.
For the term of this Agreement and ten (10) years following termination or expiration of this Agreement, Licensee agrees to hold all such Confidential Information in confidence, and not to disclose it to others or use it except for the purposes of this Agreement.
SECTION 7 – WARRANTY
7.1 Limited Warranty. SQLstream warrants to Licensee that, for a period of ninety (90) days following delivery of the Software to Licensee, the Software will perform in all material respects in accordance with its published Documentation. Licensee shall report any warranty claim to SQLstream during such ninety-day period.
7.2 Exclusive Remedies. As Licensee’s sole and exclusive remedy under this warranty, SQLstream will, at its option and expense: (i) promptly replace or correct any defective Software or media; or (ii) furnish Licensee with a reasonable procedure to circumvent the defect; or (iii), if SQLstream is unable to do either of the foregoing, refund to Licensee the license fees paid by Licensee for the defective Software, provided Licensee returns such defective Software to SQLstream within the warranty period.
7.3 Exclusions. These limited warranties shall not apply if (i) the Software is licensed under an evaluation license; (ii) the Software is used in conjunction with hardware or software other than those specified in the Documentation; or (iii) Licensee is not using the most current version of the Software. SQLstream makes no warranties whatsoever to any third party.
7.4 Disclaimer. TO THE FULLEST EXTENT PERMITTED BY LAW, SQLSTREAM DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS REGARDING THE SOFTWARE, WHETHER EXPRESS OR IMPLIED. SQLstream DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR-FREE OR WILL MEET LICENSEE’S NEEDS.
SECTION 8 – INFRINGEMENT INDEMNIFICATION
SQLstream will defend at its own expense any action brought against Licensee which is based on a claim that the Software infringes or violates any intellectual property right of any third party, and will pay all costs and damages finally awarded against Licensee in any such action or agreed by SQLstream in any settlement, provided however that Licensee shall (i) promptly notify SQLstream in writing of the claim; (ii) grant SQLstream sole control of the defense and settlement of the claim; and (iii) provide SQLstream with all assistance and information reasonably required for the defense and settlement of the claim.
Should the Software give rise, or in the opinion of SQLstream be likely to give rise to any such claim, SQLstream shall, at its option and expense, either:
i) procure for Licensee the right to continue using such Software, or
ii) replace or modify the Software so that it becomes non infringing, or
iii) terminate all or part of this Agreement with respect to such Software and refund to Licensee an amount equal to the unused pro-rated portion of the prepaid recurring license fees paid by Licensee to SQLstream for such Software.
Any indemnification by SQLstream under this Section is excluded if the claim is based upon a modified version of the Software or its combination, operation or use with software not furnished by SQLstream. The foregoing is subject to the provisions of this Agreement and states the entire liability of SQLstream and the exclusive remedy of Licensee with respect to such infringement of third parties’ intellectual property rights.
SECTION 9 – LIMITATION OF LIABILITY
Neither SQLstream nor any SQLstream licensor or reseller shall be liable for any indirect damage or loss suffered by Licensee, nor for any intangible loss, or consequential, special or punitive damages such as loss of profits, loss of benefits, loss of use, loss or corruption of data, loss of clientele, or costs of procuring substitute products or services arising out of, or in connection with this Agreement or the use or performance of the Software or Maintenance Services. In no event will the aggregate liability of SQLstream under this Agreement exceed the payments actually received by SQLstream or its reseller for Software licensed to Licensee and for the Maintenance Services provide to Licensee during the twelve (12) months prior to the date of the event giving rise to such liability.
Licensee acknowledges that in case of an infringement of the intellectual property rights of SQLstream licensors on the Software, including without limitation any breach of the license granted under this Agreement, SQLstream licensors may directly bring claims against Licensee.
SECTION 10 – RESTRICTIONS ON EXPORT
Licensee will comply with all applicable export and import control laws and regulations in its use of the Software and, in particular, Licensee will not export or re-export the Software without all required government licenses. Licensee will defend, indemnify, and hold harmless SQLstream from and against all fines, penalties, liabilities, damages, costs, and expenses incurred by SQLstream as a result of any violation of such laws or regulations by Licensee or any of its agents or employees.
SECTION 11 – TERM AND TERMINATION
11.1 Term of the Software License. Each Software license granted hereunder shall come into effect at the date the Licensee accepts this Agreement and, except as noted in subsection 10.3 below, will remain in effect either (i) for perpetuity but expressly subject to any conditions of grant contained in 3.1 above (or for the duration of the protection of the Software by national law or international conventions, if applicable), or (ii) or for such shorter time as may be stated in Licensee’s Order.
11.2 Term of Maintenance Services. SQLstream will provide Maintenance Services effective as of the date of execution of the relevant Order by the parties for an initial term of one (1) year, automatically renewable for successive one (1) year periods.
11.3 Termination for Cause. SQLstream may terminate this Agreement or any Software License automatically as of right and immediately if Licensee breaches any term of this Agreement, if such breach is not cured within thirty (30) days from the receipt of a written notice to that effect. SQLstream may terminate any Software License immediately and automatically as of right, without any notice, if Licensee breaches the provisions of Section 3 above.
11.4 Consequences of Termination. Upon any termination of this Agreement by either party: (i) all Software licenses granted by SQLstream hereunder will automatically cease; (ii) Licensee will immediately stop using the Software and will promptly return to SQLstream all copies of the Software and all related Documentation; and (iii) each party will promptly return to the other all of the other party’s Confidential Information in its possession or control and permanently erase all electronic copies of such Confidential Information. Termination of Maintenance Services does not terminate this License Agreement.
11.5 Survivability. Sections 1, 3.2, 3.3, 3.4, 5, 6, 7 and 8-12 of this Agreement will survive termination for any reason.
SECTION 12 – GENERAL PROVISIONS
12.1 Assignment. Licensee may not assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without the express prior consent of SQLstream.
12.2 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, such provision will be enforced to the maximum extent and the other provisions of this Agreement will remain in full force and effect.
12.3 Entire Agreement. This Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter, except for written agreements that specifically reference this Agreement. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of each party.
SECTION 13 – GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware
Appendix 1: MAINTENANCE AND SUPPORT TERMS
SQLstream and/or its resellers will provide the maintenance and support services set forth below (“Maintenance Services”) to Licensee in accordance with the following terms (including those found in Schedule 1 and 2 hereto) and with the level of service selected by the Licensee in the Order, if and when Licensee submits a signed SQLstream maintenance order form to SQLstream or its reseller and makes the required periodic payments for maintenance as set forth in the Order. SQLstream may, at its sole discretion, assign any of its maintenance and support services obligations to its resellers.
SECTION 1 – DESCRIPTION OF THE MAINTENANCE SERVICES
Maintenance Services shall include:
a) Maintenance of the Software in substantial compliance with the Documentation. SQLstream shall make its reasonable endeavors to achieve such compliance through implementation of a workaround, temporary or not, or by advising Licensee;
b) Access to its technical personnel to respond to Licensee reported Problems with the Product;
c) Correction, to the extent commercially reasonable, of any material bugs or failures by offering patches or maintenance releases;
d) Supply of routine upgrades (such as bug fixes and service packs) and minor releases of the Software to Licensee, provided however (i) that Licensee is responsible for ensuring that said upgrades are compatible with its software and its environment, and (ii) migration services to implement the upgrades are provided separately and not included within the Maintenance Services.
All contact persons of Licensee utilizing the Maintenance Services must have completed a training course offered by SQLstream covering the use of the Software, or else obtain a formal written waiver from an authorized representative of SQLstream. Information on SQLstream training courses is available upon request.
SECTION 2 – EXCLUSIONS FROM MAINTENANCE
Any problem and question related to the following are expressly excluded from the Maintenance Services:
a) With respect to the use and operation of the Software:
– alteration of the Software by any person other than SQLstream and its designated representatives;
– use of inappropriate versions of supporting software or hardware that are not in the Requirements section of the SQLstream Installation guide which corresponds to the version of SQLstream in use.
– use of equipment or accessories not listed in the Documentation;
– use or operation of the Software not in compliance with the specifications set out in the relevant Documentation;
– use or operation of the Software in an environment different from that set out on the Order and/or in the SQLstream Installation Guide then in effect;
– repair of damage resulting from accident, negligence, failure of related equipment or from any other cause not attributable to SQLstream.
b) Services carried out outside access times selected by Licensee.
c) Maintenance of Software if the version in use is not in the SQLstream compatibility guide then in effect;
d) Provision of services ordered under a separate agreement or of Additional Services;
e) Migration services from a prior version of the Software to the current version of the Software;
f) Supply of (i) major new releases of the Software, or (ii) new features that are provided with a new version of the Software;
g) Eradication of problems, bugs or errors caused by alteration of the Software by Licensee or by a third party without SQLstream having expressly and specifically approved said alteration;
h) The consequences of breakdowns, critical situations, blockages and loss of operating time attributable to Licensee, in particular as regards accidental loss of files or data, or in relation to the operation of the system. Licensee shall be responsible for taking such steps and safeguards for the avoidance of any data, file or program loss as are required (including regular back-ups), taking into account the value attributed to such data, file or program and the potential cost of reconstruction of the same;
i) In general, all services not described herein (e.g., any adaptation, extension or improvement of the Software that may be desired by Licensee).
SECTION 3 – COLLABORATION BETWEEN THE PARTIES
Licensee hereby acknowledges that the services covered by this Agreement require active and regular collaboration between Licensee and SQLstream.
In order to facilitate the work, Licensee hereby undertakes to make the necessary means in transport, power and machine time available to SQLstream and to its technicians so that such work may be as efficient as possible.
Licensee shall appoint a technical contact authorized to provide all relevant documents and information and to represent it for all work performed by SQLstream.
The purpose of this cooperation between Licensee and SQLstream shall be to improve maintenance efficiency, both as regards cost and rapidity, in order that Licensee may have high-performance SQLstream Products permanently at its disposal.
SECTION 4 – OBLIGATIONS OF LICENSEE
Licensee shall use the Software in compliance with the relevant Documentation and with the terms and conditions governing the license granted on the Software.
Licensee hereby undertakes to keep an updated back-up copy of the Software, of its other Software and its data in order to avoid loss of data through mistake during performance of the Services. Licensee hereby undertakes to make a back-up copy of the internal database of the Software at least once a day.
During performance of work by SQLstream, Licensee shall make available to the former all of the new releases and other items updated by SQLstream. Licensee shall test the Software on request by SQLstream.
Licensee shall be bound to ensure, in particular by having the persons concerned follow the specific training corresponding to the Software installed at its site, that persons working on its behalf using the Software shall have a sufficient level of knowledge and competence to use the Software in compliance with the relevant documentation.
SECTION 5 – ORDERS AND ACCEPTANCE
Licensee orders Maintenance Services under this Agreement by submitting an Order to SQLstream or its reseller. All Orders shall be subject to SQLstream’s acceptance. SQLstream may manifest its acceptance by signing the applicable Order, or by delivering the ordered Maintenance Services, provided SQLstream or its reseller has received the payment of the applicable license fees. If Licensee does not pay the Maintenance fees, Licensee will be considered to have refused the Maintenance terms. Once Licensee has paid the applicable Maintenance fees, any Order under this Agreement is firm and may not give rise to cancellation, return, refund or offset unless the parties specifically agree otherwise in writing.
Schedule 1: METHODS AND TIMES OF ACCESS TO SQLstream SUPPORT
Accessing Maintenance Services
1) SQLstream Website: http://www.sqlstream.com/Developers/support.htm
2) SQLstream support center:
By telephone: 877-571-5775 (8SQL-715-SQL)
By email: firstname.lastname@example.org
Timetable for telephone support
Description Reference Item Access time to engineers
Standard Services Monday – Friday 9 a.m.-5 p.m. Pacific Time on business days
Premium Services 24×7
Schedule 2: LEVELS OF SERVICE
An “Action Plan” shall mean a plan that identifies the Licensee, contains a problem statement (including a clear description of the problem the Licensee has encountered), describes the impact of the problem to the Licensee, and clearly defines the goals, actions, timeframes and responsible individuals to deliver a Problem Resolution.
A “Problem Resolution” shall mean any of the following:
– the reported problem is corrected by replacing the malfunctioning Software;
– a solution has been generated in the form of a tested “patch” or a new image or a new revision that corrects the problem without causing additional problems, the solution was delivered to the Licensee, was successfully installed, the solution is working, and the call closed;
– the problem and its cause have been identified. However, a correction was not generated because Licensee and SQLstream have agreed that a preliminary analysis of the correction indicates that a correction may cause unknown and/or serious regressions or subsequent problems due to constraints in the design and/or implementation of the affected Software;
– Licensee and SQLstream agree that the Software conforms in material respects to design specifications or the Documentation and need not be changed;
– the Software conforms in material respects to design specifications or the Documentation, and Licensee and SQLstream jointly agree that the problem report will be treated as a request for new features, functionality or enhancements and will be considered for future implementation;
– the Software conforms to design specifications and will not be changed, but the problem exists in the Documentation and the appropriate Documentation will be clarified;
– the problem has only occurred once and the Licensee agrees that adequate time and effort has been expended and that the problem could not be reproduced;
– a workaround is delivered to and accepted by the Licensee as a final solution and the call closed;
– Licensee and SQLstream agree that SQLstream will correct the problem in a future release of the Software when Licensee and SQLstream have determined that the problem cannot be economically or feasibly resolved and requires a redesign of the Software or rewrite of the segment of code or image and the Licensee has been notified of this action;
– Licensee and SQLstream jointly concur that further effort is not warranted; or
– Licensee and SQLstream agree that the Software does not cause the problem.
In order to be solved under the Maintenance Services, a problem shall be reproducible at the time Licensee reports the problem.
Priorities are defined jointly between Licensee and SQLstream.
The actions and level of effort are associated to the access time subscribed to. For instance, what is referenced as a continuous effort in the rest of the text means continuous effort within the access time; in the case of standard services, continuous effort will apply to the period 9am – 5pm Pacific Time on business days.
The periods specified in hours and level of effort are associated to the access times subscribed to, except for the Medium and Low priorities, which in all cases correspond to standard times. All time periods run from the moment the matter is first reported by telephone to SQLstream.
All time periods run from the moment the matter is first reported.
Problem Resolution Metrics:
i) “Critical”: A “Critical” problem is a problem that severely impacts the Licensee’s ability to conduct business. This means that the Licensee’s systems and/or the Software are down or not functioning and no procedural workaround exists.
SQLstream’s support organization will respond directly to the Licensee’s service delivery organization within one (1) hour following receipt of the call from the Licensee’s service delivery organization. SQLstream and Licensee will develop an Action Plan within four (4) hours following receipt of the call.
When working on a “Critical” problem, the objective is to get the Licensee back on line by whatever means within 24 hours and to downgrade the problem severity accordingly. Efforts to isolate, diagnose, and deliver a work-around or repair to a “Critical” problem shall require continuous presence and feedback from the Licensee. Continuous phone contact and progress updates are part of the action plan. These progress updates should be according to the Action Plan until the problem severity is reduced. When the severity level has been changed to “Major” or “Medium”, the appropriate guidelines should be followed.
ii) “Major”: A “Major” problem is a high-impact problem in which the Licensee’s operation is disrupted but there is capacity to remain productive and maintain necessary business-level operations. The problem may require a fix to be installed on the Licensee’s system prior to the next planned commercial release of the Software.
SQLstream support organization will respond to the Licensee service delivery organization within four (4) hours following receipt of the call from the Licensee service delivery organization during normal business hours otherwise on the next business day.
Efforts to isolate, diagnose, and deliver a work-around or repair to a Major problem shall be continuous during business hours (Monday through Friday, 9am – 5pm). Specific implementation should be agreed between Licensee and SQLstream on a case-by-case basis and documented in an Action Plan within 12 hours measured in access time after receipt of the call by SQLstream. The frequency that SQLstream shall provide status updates shall be as mutually agreed. The objective is to have a solution and/or fix to the Licensee within an average of 20 days.
iii) “Medium”: A “Medium” problem is a medium impact problem that involves partial loss of non-critical functionality. The problem impairs some operations but allows the Licensee to continue to function. This may be an issue with limited loss or no loss of functionality or impact to the Licensee’s operation. This includes Documentation errors.
SQLstream support organization will respond to the Licensee service delivery organization within eight (8) hours, measured in access time, after receipt of the call by SQLstream.
When working a “Medium” problem, the objective is to get the Licensee a fix to the problem in the next release or a statement describing the disposition of the problem. Action should be appropriate to the nature of the escalation. Efforts to isolate and resolve the problem shall be as agreed to in the Action Plan or a minimum of Monday through Friday during normal business hours (9am – 5pm Pacific Time).
iv) “Low”: The designation “Low” problem or “No Impact” will be assigned to general usage questions, or to modifications and calls that are passed to SQLstream for information purposes. There is no impact on the quality, performance or functionality of the Software.
SQLstream’s support organization will respond in a manner appropriate to the nature of the call.
If Licensee’s sole reason for making a Low Problem/No Impact call is to submit a draft symptom/solution article for consideration by SQLstream, SQLstream will respond to the submission and, if appropriate, will provide a reviewed and edited copy of the submission and a recommendation for its disposition.
c) Response time matrix
Requirements Joint Action
Updates Interim Fix
Target * Resolution
Target * Level of
Critical Within 1 hour Within 4 hours Per Action Plan Within 24 hours, fix problem or provide workaround. Work to downgrade to severity Major Within 24 hours, fix problem or provide workaround. Work to downgrade to severity Major Continuous effort until Interim Fix
Major Within 4 hours ; otherwise next business day. Within 12 hours Per Action Plan N/A Provide a solution/fix within an average of 20 days As agreed to in Action Plan or a minimum of local time continuous
Medium Within 8 hours Mon -Fri (9am-5pm PT) or otherwise next business day. Within 10 business days Per Action Plan N/A Next release or a statement regarding the disposition of the problem. As agreed to in Action Plan or a minimum of Mon-Fri 9am-5pm Pacific Time
Low/No Impact Engineering reviews and provides response within 30 days of the escalation. N/A Within an average of 30 days, provide a statement regarding disposition of the problem. Mon-Fri 9am-5pm Pacific Time
(*) Timeframes defined are desired goals based on SQLstream commercially reasonable best efforts and are initiated upon receipt of the escalation by SQLstream