End-User License Agreement
for Woodler SQL Monitoring & Performance Tuning software (SMT)
governing the grant of license by the Woodler s. r. o. as the licensor to the subscriber of Woodler SQL Monitoring & Performance Tuning software (SMT) subscription (hereinafter referred as the Licensee) and other related legal relationships in accordance with Section 1751 (1) and Section 2358 and following of Act no. 89/2012 Coll., civil code (hereinafter referred as Civil Code)
Licensor:
Woodler s. r. o.
ID: 44 732 503
Registered office: Pribinova 4, 811 09 Bratislava, Slovak Republic
Registered in the commercial register maintained by the District court of Bratislava 1 under file Sro 151073/B
(hereinafter referred as the Licensor; the Licensee and the Licensor together shall be hereinafter referred to as the Parties)
1. Applicability
The following terms apply to any legal relationships between the Licensee and Licensor relating to grant of license to the Woodler SQL Monitoring & Performance Tuning software (hereinafter referred to as the Software) and use of the Software.
Relationships between the Parties are also governed by the General Terms and Conditions and the Contract concluded between the Parties regarding the Woodler SQL Monitoring & Performance Tuning software subscription (hereinafter referred as the Contract) and in any case the provisions of this End-User License Agreement and the provisions of either General Terms and Conditions or the Contract conflicts, the provisions of this End-User License Agreement shall take precedence.
2. Conclusion of Agreement
This End-User License Agreement between the Licensor and the Licensee is concluded at the time of conclusion of the Contract regarding the Woodler SQL Monitoring & Performance Tuning software subscription or at latest at the time of installation of the Software by the Licensee. If the End-User License Agreement is not concluded between the Parties before the installation of the Software, then installing the Software shall be regarded as acceptance of the offer to enter into the End-User License Agreement between the Parties.
3. Grant of license
3.1 Licence bound to Subscription
The Licensee is entitled to the license or any other rights arising out of this End-User License Agreement under the condition that he has a valid and ongoing Woodler SQL Monitoring & Performance Tuning software subscription based on the Contract (hereinafter referred as the Subscription).
3.2 Nonexclusive limited license
The Licensor hereby grants the Licensee nonexclusive limited permission to use the Software for its intended purpose which is to analyse the operation of Licensee’s instance of MS SQL Server software (hereinafter referred to as the License). Limitations of the License are listed further in this End-User License Agreement.
3.3 Term
The License is granted only for a limited term that corresponds to the term of the Subscription. The License lasts as long as the Licensee maintains his Subscription valid. The License is automatically prolonged for any term of the Subscription the Licensee paid for in full. Any time the Subscription is terminated without proper renewal the License is terminated as well.
3.4 Geographical extent
The License is not limited in the geographical extent and the Software can be used by the eligible Licensee anywhere in the World.
3.5 Price
The License is granted for a price that is in full included in the price of the Subscription and the Licensee is not obliged to pay any other extra amount for the License unless otherwise expressly stated.
3.6 Updates and upgrades
The License encompasses all versions of the Software including all updates or upgrades the Licensee is eligible to claim based on the valid Subscription.
3.7 Suspension of the License
The Licensor is entitled to suspend the License any time he is entitled to suspend the Subscription and the License is automatically suspended any time the Subscription is suspended without further notice. Licensor is also entitled to suspend the License any time the Licensee breaches this End-User License Agreement.
During the suspension of the License, the Licensee is not entitled to use the Software in any way. Licensee is not entitled to any refunds or discounts for the duration of the suspension of the subscription.
3.8 Cancellation of the License
The Licensor is entitled to cancel the License any time he is entitled to cancel the Subscription and the License is automatically cancelled any at the time the Subscription is cancelled. Licensor is also entitled to cancel the License any time the Licensee breaches this End-User License Agreement.
The Licensee is entitled to cancel the License any time by cancelling the Subscription.
By cancelling the License the End-User License Agreement is terminated and the Licensee shall not be entitled to further use the Software in any way. Licensee is not entitled to any refund of the price for the remainder of the term in which the License was cancelled.
4. Installation
4.1 Installation procedure and requirements
The Software is provided with documentation that includes an installation guide, specification of technical requirements for operation of the Software and internal help and tooltips integrated into the user interface of the Software.
The Licensee is obliged to get familiar with the installation instructions in the provided documentation as well as with the software, hardware, and technical requirements of proper operation of the Software before installation.
4.2 Compatibility
The Software is only compatible with the software and hardware listed in the documentation. Compatibility with any other software or hardware is not implied and by no means guaranteed.
4.3 Installation responsibility
The Licensee is fully responsible for proper installation of the Software on his infrastructure and for fulfilling all the software, hardware, and technical requirements for proper operation of the Software.
4.4 Limited number of installations
The Licensee is entitled to have only a limited number of copies of the Software installed at the same time. The number of concurrently installed copies of the Software that may be installed is set out in the Subscription.
Each copy of the Software is tied to exactly one instance of MS SQL Server. the Licensee is entitled to change the MS SQL Server instance a copy of the Software is tied to by uninstalling a copy of the Software tied to one instance of MS SQL Server and installing another copy of the Software for another instance of MS SQL Server.
Licensor is entitled to check the number of installed copies of the Software by analysing the data sent to the Licensor’s system during initialization of the Software and the operation of the Software. If the Licensor finds out that the Licensee is using more copies of the Software than he is entitled to, the Licensor is entitled to suspend the operation of the exceeding number of copies of the Software or cancel initialization of exceeding number of copies of the Software at Licensor’s choice.
5. Operation
5.1 Performance impacts
Operation of the Software even under the best conditions incurs performance impacts on the operation of the Licensee’s systems and requires computing resources including CPU time, RAM and disk space (observer overhead). Performance impacts and amount of resources required depends on many factors including settings of the Software, Licensee’s IT infrastructure, system architecture and workload of the monitored MS SQL Instance. The estimated amount of computing resources required is listed in the Software documentation.
5.2 Connection to the Licensor’s system is required
Constant internet connection to the Licensor’s systems is required for proper operation of the Software. Valid customer account of the Licensee and valid credentials of the authorised user with sufficient permissions are required in order to initialise and properly operate the Software. Without the connection to the Licensor’s systems and valid authentication, the Software is not able to initialize, and ongoing operation of the Software might be hindered.
5.3 Use of the Licensor’s systems
Access to the Licensor’s systems is required for proper initialization and operation of the software and the Licensor’s systems are intended to be used automatically by the Software only. Any attempts to use the Licensor’s systems by other means than automatically by the Software will be considered as a serious breach of the End-User License Agreement and might result in suspension and or cancellation of the License or Subscription or withdrawal from the Contract without further notice.
5.4 Customer data retention
No user data from Licensee’s databases are transferred to the Licensor’s systems during the Software operation. Only data concerning the Subscription, authorized users and Software metadata such as settings or operational metrics might be relayed to the Licensor’s systems during the initialization and operation of the Software.
6. Modifications of the Software and settings
6.1 No modification
The Licensee is not entitled to make any changes and or modifications of the Software or its metadata or to combine it with other software or to include it in a collective work unless expressly stated otherwise in this End-User License Agreement or expressly allowed by the Software itself. The Parties expressly preclude the use of Section 66 (1) point b) of Act num. 121/2000 Coll., Copyright Act. Limitations in this article apply in the maximum extent permitted by the law.
6.2 No reverse engineering
The Licensee is not entitled to copy, translate, decompile, modify or change the Software in order to understand its functionality or get access to the source code and any know-how used to create the Software. This limitation applies in the maximum extent permitted by the law.
6.3 No source code
The Licensee is not granted any title to the source code of the Software and is not entitled to request disclosure of the Software source code under any circumstances.
6.4 Interoperability
In any case, the Licensee needs to achieve interoperability of the Software with other software, the Licensee is obliged to contact the Licensor and request the Licensor’s cooperation. The Licensee is not entitled to copy or decompile the Software or its parts in order to achieve interoperability with other software unless first reaching out to the Licensor.
6.5 Settings
The Software is provided with standard settings suitable for most circumstances. Operation of the Software under special conditions incurred by specific circumstances of Licensee’s infrastructure should be consulted with the Licensor.
The Licensee is responsible for any changes made to the standard settings. Wrong settings might increase the performance impacts of the operation of the Software, cause the Software to malfunction or not work at all or might cause unexpected behaviour including faults in operation of Licensee’s systems potentially leading to loss of data.
7. Assignment, transfer and lease
7.1 Usable only be the Licensee
Only the Licensee has the permission to use the Software under the License and the Licensee is forbidden to directly or indirectly allow any third party to use the Software with the exception of subjects of the same group of companies tightly interconnected by common ownership structure or concern if such use would not conflict with the legitimate business interests of the Licensor.
7.2 No transfer, assignment or lease
The Licensee is forbidden to transfer the License, to assign the License, to grant a sub-license, to lease the Software or otherwise make the Software available to any third party for a fee or free of charge without the previous consent of the Licensor in writing.
8. Third party components
The software might utilize components or parts of code from third parties. In such case, the Licensor guarantees that the Licensor properly obtained licenses to such components or parts of code and is entitled to grant the License encompassing those components and parts of code.
The third-party components and respective licenses are listed in Annex 1 of this End-User License Agreement.
9. Warranties and liability
9.1 No express or implied warranty or liability for defects
The Licensor provides no warranty for the Software. Licensee is only entitled to claim the rights arising out of Licensor’s liability for defects under the Contract in the extent expressly stated in the General Terms and Conditions.
9.2 Limitation of liability for damages
The Licensor shall not be obliged to reimburse the Licensee or any other third party for any loss of profit or revenue, direct, indirect, subsequent, subsidiary, punitive or special damages including any damages from loss of data, hindrances and outages of operation of Licensee’s systems or business activity incurred in relation with the use of the Software. This limitation applies in the maximum extent permitted by the applicable law.
In any case if the Licensor is still held liable for any damages the total combined reimbursement shall not exceed the combined amount paid by the Licensee for the Subscription.
10. Privacy
Operation of the Software might require the Licensor to process certain personal data of Licensee or authorized users. Licensor hereby declares that he is processing all personal data only in accordance with the relevant legislation and especially in accordance with the General Data Protection regulation. Detailed information about the processing of the personal data can be found in the Licensor’s Privacy Policy published on the Website.
11. Dispute resolution
Parties shall aim to resolve any arising disputes in an amicable way by negotiations in good faith.
Any disputes arising out of the End User License Agreement and any related legal relationships including damage and other claims shall be settled before the courts of the Czech Republic. Parties specifically choose the Area court for Prague 1 as general court and matters in the jurisdiction of regional courts shall be decided by the Municipal Court in Prague. The jurisdiction of the chosen courts shall be exclusive.
12. Applicable law
Parties execute the choice of law and choose that the End-User License Agreement and all related legal relationships including damage and other claims shall be governed by the law of the Czech Republic. The Parties acknowledge and recognize that areas not explicitly regulated hereby shall be regulated by the respective provisions of the Civil Code, Copyright Act and other relevant laws of the Czech Republic.
Parties hereby exclude the use of the United Nations Convention for the International Sale of Goods.
13. Final Provisions
13.1 Entire agreement
This End-User License Agreement and General Terms and Conditions, including all annexes hereto, constitute the entire agreement between the Parties as to its subject matter and supersedes all previous agreements, proposals or representations, written or oral, concerning the subject matter of the End-User Agreement and related matters.
The Licensor expressly rejects any and all terms and conditions of the Licensee related to any legal relationships governed by this End-User License Agreement.
13.2 Risk of changing circumstances
The Licensee accepts the risk of changing circumstances and is therefore not entitled to claim the right to renegotiate the End-User License Agreement according to Section 1765 Civil Code.
13.3 Severability
Should any of the provisions hereof appear or shall be determined invalid, ineffective, non-existent or unenforceable at a later date, then such invalidity, ineffectiveness, non-existence or unenforceability shall not cause the invalidity, ineffectiveness, non-existence or unenforceability hereof as a whole. In such a case, the Parties undertake, to clarify without undue delay any such defective provisions within the meaning of Section 553 (2) of the Civil Code, or to replace it, by mutual agreement, by a new provision that most closely reflects the intentions of the Parties at the time of conclusion hereof, to an extent permitted by the laws and regulations of the Czech Republic.
13.4 Change of the Terms
The Licensor reserves the right to change this End-User License Agreement at any time in full or in part. The right of the Licensor includes the right to change the price, and any License terms.
The Licensor shall notify the Licensee about any abovementioned changes through the Website at least one month before the changes take effect. The Licensee is entitled to withdraw from the End-User License Agreement any time before the changes take effect. If the Licensee does not withdraw from the End-User License Agreement according to the previous sentence, then the legal relationships between the Licensor and the Licensee shall be governed by the changed terms from the effective date of the changes.
13.5 Effective Date
This End-User License Agreement shall be effective from 31.03.2021.
List of third-party components
The Woodler SQL monitoring & Performance Tuning software (SMT) uses the below listed third-party components:
| Component | Author | License |
|---|---|---|
| Powershell-WhoIsAsctive | Robert Cadd | MIT License (https://github.com/RobertCadd/Powershell-WhoIsActive/blob/master/LICENSE) |