Terms of Service

This SQLWATCH TERMS OF SERVICE (“Agreement”) is made and entered into as of the date of last signature set forth in the Service Order (“Effective Date”) by and between SQLWATCH LTD, a Limited company incorporated in England and Wales, on behalf of itself and its Affiliates (“SQLWATCH”), with its principal place of business at Innovation Centre Innovation Way, Heslington, York, North Yorkshire, YO10 5DG, United Kingdom, and the company and legal entity specified in the executed Service Order (“Customer”).

SQLWATCH and Customer may be referred to collectively as “Parties” or individually as a “Party”.

1. Definitions

Applicable terms not otherwise defined below in this Section 1 shall have the meaning defined hereunder in this Agreement or in a Service Order.

1.1. “Acceptable Use Policy”

means those SQLWATCH Services obligations are described in the attached schedule 1 and terms of use.

1.2. “Affiliates”

means any entity that directly or indirectly controls are controlled by or is under common control with the subject entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

1.3. “Client Software”

means software licensed by SQLWATCH to Customer that is typically deployed on Customer’s machines to enable access to and use of the SQLWATCH Services. Client Software is also known as the “SQLWATCH Data Collector”. Client Software may include or be provided with code licensed under third-party agreements, including Open-Source Software.

1.4. “Customer Data”

means all data, information, or other material that Customer loads or grants SQLWATCH the right to process, on or through the SQLWATCH Services, including Usernames, passwords, IP addresses and other User identifiers. Customer Data also includes any data generated and displayed in an SQLWATCH dashboard resulting from a customer’s use of the SQLWATCH Services (including Output).

1.5. “Documentation”

means the online product documentation, user instructions, and any files made available to the customer by SQLWATCH as part of the SQLWATCH Services

1.6. “Intellectual Property Rights”

means all intellectual property or other proprietary rights worldwide, including patents, copyrights, trademarks, moral rights, trade secrets, and any other intellectual or industrial property, including registrations, applications, renewals, and extensions of such rights.

1.7. “Data Workspace”

means a dedicated customer data store for storing data collected by the data collector, accessed by users through the Client Workspace and includes customer data as part of the customer’s use of the SQLWATCH Services.

1.8. “Client Workspace”

means the SQLWATCH web application offered as part of the SQLWATCH Services contains both proprietary or open-source HTML, applications, messages, text, files, images, photos, video, sounds, profiles, works of authorship and other content (collectively, “SQLWATCH Content”) for use by Customer during the Subscription Term, to access and visualise stored in the Data Workspace or Data Workspaces.

1.9. “SQLWATCH Privacy Policy”

means the descriptions and terms applicable to SQLWATCH’s collection, processing, use and storage of personal data or personal information in connection with the Customer and its User’s use and access to the SQLWATCH Services.

1.10. “SQLWATCH Service(s)”

means SQLWATCH’s proprietary, cloud-based infrastructure monitoring and troubleshooting service and related technologies and capabilities, such as SQLWATCH Data Collector Module, SQLWATCH Cloud, SQLWATCH Support portal, shall include without limitation all software, sample code, object code, features, platform and portal access rights, and elements of same, as well as all Documentation provided in connection with the SQLWATCH Services.

1.11. “SQLWATCH Supported Systems”

means any SQL Server or SQL Server compatible instance that can be monitored by SQLWATCH Services through SQLWATCH Data Collector.

1.12. “Instance or Server”

means “monitored SQL Server, Managed Instance or an Azure Database” that appears as a separate entry in the SQLWATCH Cloud “Servers” list as part of the SQLWATCH Services.

1.13. “Output”

means any alarms, alerts, dashboards, reports, or other information generated by the Customer’s use of the SQLWATCH Services displayed in the SQLWATCH dashboard or delivered to Users by any means, available and accessible to Users and Administrators during the Subscription Term.

1.14. “Service Order”

means the binding Customer ordering document governed by this Agreement and either signed by the parties or agreed to and acknowledged by the Customer through the online Client Portal that describes, among other things, Customer’s use and access entitlements, the Support Services package selected by the Customer, any additional features or modules ordered by the Customer, the duration of the Subscription Term and the fees payable by the Customer in exchange for its use of the SQLWATCH Services platform.

1.15. “Support Services”

means technical support and application management services.

1.16. “Term”

means the term of the Agreement, including the initial Subscription Term and any Renewal Term(s) as further described in Section 8.1.

1.17. “User”

means the named person or persons authorized by Customer to use the SQLWATCH Services as defined in a Service Order. Users having a unique identifier (“UID” or email address) and password to connect to the SQLWATCH Services shall be identified as “Named Users”. A Named User cannot share User IDs and passwords with other Users during the Subscription Term, and Customer usage of the SQLWATCH Services is not intended for concurrent or shift-based Users. Named User access rights may be reassigned to new Named Users if the original Named User no longer uses and accesses SQLWATCH Services because of a role change, employment termination or similar reasons. For any Service Order adopting the SQLWATCH User-based model, any exceptions to the general designation of Users as Named Users shall be outlined in applicable Service Orders.

2. SQLWATCH Services

2.1. Provision of Services

The SQLWATCH Services and Support Services are provided on a subscription basis for a set term designated on the Service Order (each, a “Subscription Term”). SQLWATCH may also offer Professional Services (as defined in Section 4.4) related to the SQLWATCH Services. Customer shall purchase and SQLWATCH shall provide the specific SQLWATCH Services and related Professional Services (if any) as specified in the applicable Service Order entered as of the Effective Date.

Business Use Only: The SQLWATCH Services are provided exclusively for business and commercial use. Customer represents that it is acquiring the Services for business purposes and not as a consumer. If Customer is located in a jurisdiction where consumer protection laws may apply, Customer waives such protections to the extent permitted by applicable law.

2.2. Access to the SQLWATCH Services

During each Subscription Term, SQLWATCH grants to Customer and its Users the following rights: a) the right to use and access the SQLWATCH Services including Data Collector, Data Workspace, Client Workspace, solely for its own benefit and in accordance with the terms and conditions of this Agreement, and b) the right to use and access the Documentation; each strictly in accordance with any scope of use restrictions designated in the applicable Service Order.

3. Customer Obligations

3.1. In General

Customer shall ensure that Customer, its Affiliates, and its Users’ use of the SQLWATCH Services is always compliant with Customer’s privacy policies and all applicable laws.

3.2. Responsibility for Customer Data

Customer is solely responsible for the accuracy, content, and legality of all Customer Data (including those submitted by its Users) and for permitting SQLWATCH to lawfully use, process and access Customer Data in connection with SQLWATCH performance of the SQLWATCH Services.

3.3.1. Data Protection Compliance

Both parties acknowledge that personal data may be processed in connection with this Agreement. Where SQLWATCH processes personal data on behalf of Customer, SQLWATCH acts as a data processor and Customer acts as the data controller, and both parties shall comply with applicable data protection laws including:

(a) the UK General Data Protection Regulation and the Data Protection Act 2018;

(b) the EU General Data Protection Regulation (where applicable);

SQLWATCH will process personal data only in accordance with Customer’s documented instructions and will implement appropriate technical and organizational measures. The parties may enter into a separate Data Processing Agreement containing additional terms required by applicable data protection laws.

4. SQLWATCH Obligations

4.1. Technical Support Services

SQLWATCH shall provide “Technical Support” as defined on the Pricing page. SQLWATCH does not provide direct end User Technical Support Services.

4.2. Service Level Obligations

SQLWATCH will use commercially reasonable efforts to make the SQLWATCH Services available with minimal downtime, 24 hours a day, 7 days a week in accordance with SQLWATCH’s “Service Level Commitment” as defined herein. The SQLWATCH Services will be available at least 99.5% of each month during the Term (“Availability”).

4.3. Open Source

SQLWATCH acknowledges that it uses certain Open-Source libraries as part of the SQLWATCH Services (“Open-Source Software”) including in Client Software distributed to Customers. Any use of open-source software or code will be noted appropriately with the relevant license. No parts of SQLWATCH Cloud are open source unless noted.

4.4. Professional Services

SQLWATCH may provide agreed upon professional consulting services (“Professional Services”) that may be purchased in the applicable Service Order. The scope of Professional Services shall be as set forth in a Statement of Work referencing this Agreement and executed by both parties.

4.5. Security Obligations

SQLWATCH agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the SQLWATCH Services or Customer Data. However, SQLWATCH shall have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond SQLWATCH’s control.

5. Service Orders; Pricing Payment Terms; Taxes

5.1. Service Orders and Pricing

The parties shall enter into a Service Order as of the Effective Date for the initial Subscription Term. SQLWATCH Services pricing terms and descriptions as of the Effective Date are as set forth in a separate Services Order subject to and governed by this Agreement. SQLWATCH reserves the right to increase fees applicable to SQLWATCH Services by providing Customer thirty (30) days’ notice prior to the end of each active Subscription Term.

5.2. Payments Terms

SQLWATCH Services fees are invoiced either annually or monthly in advance. SQLWATCH’s primary form of acceptable payment is by credit card handled by our payment partner Stripe. Late payments will accrue interest at a rate of 1.5% per month or the legal maximum rate, whichever is lower.

5.3. Taxes

SQLWATCH uses Stripe for payment processing, which automatically calculates applicable taxes at the checkout. Customer is responsible for paying all Taxes associated with Customer purchases hereunder.

6. Confidential Information

As used herein, “Confidential Information” means non-public information that the party disclosing the information designates at the time of disclosure as being confidential. SQLWATCH Technology, SQLWATCH Services, Client Software and unpublished Documentation shall be deemed SQLWATCH Confidential Information.

7. Representations and Warranties

7.1. Limited SQLWATCH Services Warranty

SQLWATCH warrants, for Customer’s benefit only, that the SQLWATCH Services will operate in substantial conformity with the applicable Documentation. SQLWATCH’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, at no charge to Customer, for SQLWATCH to use commercially reasonable efforts to correct the reported non-conformity.

7.2. Limited Support and Professional Services Warranty

SQLWATCH shall perform Support Services and Professional Services in a competent, professional and workmanlike manner consistent with applicable industry practices.

7.3. Warranty Disclaimer

EXCEPT FOR THE LIMITED WARRANTIES IN SECTIONS 7.1 and 7.2, ABOVE, THE SQLWATCH SERVICES ARE PROVIDED “AS IS”. NEITHER SQLWATCH NOR ITS PARTNERS AND SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.

8. Term and Termination

8.1. Term

The term of this Agreement (“Term”) and the SQLWATCH Services period set forth in the initial Service Order (the “Subscription Term”) shall commence on the Effective Date hereof. The Agreement and the SQLWATCH Services set forth in a Service Order will automatically renew for additional, consecutive periods (e.g., month to month or annually) as otherwise set forth in the Service Order (each a “Renewal Term”), unless either Party provides not less than thirty (30) days’ written notice of non-renewal prior to the end of the applicable Subscription or Renewal Term.

8.2. Termination

Either party may terminate this Agreement (including all related Service Orders) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operations without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding.

9. Indemnification

9.1. SQLWATCH Indemnification

SQLWATCH shall defend Customer from and against any claim by a third party alleging the SQLWATCH Services when used as authorized under this Agreement, infringes a patent, copyright, or trademark and shall indemnify and hold Customer harmless from and against any damages and costs awarded against Customer or agreed in settlement by SQLWATCH (including reasonable attorneys’ fees) resulting from such claim.

9.2. Indemnification by Customer

Customer shall indemnify, defend and hold harmless SQLWATCH from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any Customer Data or breach by Customer of Section 3 (Customer Obligations), (b) any service or product offered by Customer in connection with or related to the SQLWATCH Services or (c) sharing of Customer Data with third-party Users.

10. Limitation Of Liability

10.1. Liability Exclusions

Except for Excluded Claims, neither party shall be liable for any indirect, special, incidental, or consequential damages, including loss of profits, data, or business opportunities, whether in contract, tort (including negligence), or otherwise.

Nothing in this Agreement excludes or limits either party’s liability for:

death or personal injury caused by negligence;
fraud or fraudulent misrepresentation;
breach of confidentiality obligations;
indemnification obligations; or
any other liability that cannot be excluded or limited under applicable law.

10.2. Liability Cap

Subject to Section 10.1, each party’s total aggregate liability arising out of or related to this Agreement shall not exceed the fees paid or payable by Customer to SQLWATCH in the twelve (12) months immediately preceding the event giving rise to the claim.

11. Ownership

11.1. Rights in Customer Data

As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to SQLWATCH and to the Output.

11.2. SQLWATCH Technology

This is a subscription agreement for access to use of the SQLWATCH Services. Customer acknowledges that it is obtaining only a limited right to the SQLWATCH Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement.

12. Miscellaneous

12.1. No Agency

Nothing in this Agreement shall be deemed to create any agency, partnership, joint venture, or employment relationship. Customer accepts and acknowledges that SQLWATCH is an independent contractor providing Customer with use of the SQLWATCH Services.

12.2. Assignment

This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities.

12.3. Notices

All notices under this Agreement must be in writing and delivered either by hand, e-mail (with confirmation of receipt), certified mail (return receipt requested, postage pre-paid) or nationally recognized overnight delivery service (all delivery charges pre-paid) and addressed, if to SQLWATCH: SQLWATCH LTD, Innovation Centre Innovation Way, Heslington, York, North Yorkshire, YO10 5DG, United Kingdom, Attn: DIRECTORS.

12.4. Force Majeure

Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such parties.

12.5. Export Compliance

Customer agrees to comply with all applicable export controls, trade sanctions, and import regulations, including those of the United Kingdom, United States, European Union, and other relevant jurisdictions.

12.6. Anti-Corruption Laws

Customer shall comply with all anti-corruption laws and regulations (“Anti-Corruption Laws”) including but not limited to the United States Foreign Corrupt Practices Act (“FCPA”) and/or the UK Bribery Act.

12.7. Publicity

At the request of SQLWATCH, Customer agrees to participate in reasonable marketing activities that promote the benefits of the SQLWATCH Services to other potential customers. Customer agrees that SQLWATCH may use the Customer’s name and logo on SQLWATCH web site and in SQLWATCH promotional materials.

12.10. Governing Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of England and Wales. Any disputes arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the English courts, provided that SQLWATCH may seek injunctive relief in any court of competent jurisdiction to protect its intellectual property rights.

SCHEDULE 1 - ACCEPTABLE USE POLICY

This Acceptable Use Policy (“AUP”) sets forth the restrictions regarding use of the SQLWATCH LTD. (“SQLWATCH”) Services platform (the “SQLWATCH Services”). Use of the SQLWATCH Services is governed by the separate agreement entered into between the user (“User”) and SQLWATCH (the “Agreement”) and the Service Order. This AUP is incorporated into the Agreement by reference.

1. The user shall not:

use the SQLWATCH Services to store or transmit infringing, libelous or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
use the SQLWATCH Services to store or transmit viruses or malicious code;
interfere with or disrupt the integrity or performance of the SQLWATCH Services, or attempt to or actually override any security component included in the SQLWATCH Services;
attempt to gain unauthorized access to the SQLWATCH Services or any related systems or networks;
permit direct or indirect access to or use of the SQLWATCH Services in a way that violates the Agreement;
use the SQLWATCH Services to generate or send unsolicited communications, advertising or spam;
use the SQLWATCH Services in any illegal or unlawful manner, or for any illegal or unlawful purpose;
perform any act which is intended to and/or actually does harm to SQLWATCH, the SQLWATCH Services, or any of SQLWATCH’s customers;

2. Monitoring and Suspension Rights.

SQLWATCH will not review or screen Customer Data on a regular basis for compliance with this AUP or applicable law; provided, however, that SQLWATCH reserves the right to suspend and/or terminate Customer’s access to and/or use of the SQLWATCH Services if SQLWATCH determines, in its sole judgment and discretion, that such suspension or termination is necessary to comply with applicable law, and/or to prevent significant harm to the SQLWATCH Services or any User.

3. Usage Policy.

User profiles may be monitored to identify unusual patterns inconsistent with normal, individual use. SQLWATCH may, at its sole discretion, suspend Customer’s right to use the SQLWATCH Services if SQLWATCH determines that Customer usage varies substantially from normal use.

Contact Information

For questions regarding these Terms of Service, please contact:

Email: support@sqlwatch.cloud

Address: SQLWATCH LTD, Innovation Centre Innovation Way, Heslington, York, North Yorkshire, YO10 5DG, United Kingdom