10713 RR 620 North
Austin, TX 78726-1708
Note: The following preliminary terms use some of the definitions specified below.
Entering into this Agreement: This End User License Agreement constitutes a valid and binding agreement between Database-Brothers, Inc. (“DBI”) and You. You must enter into this Agreement by clicking on the ACCEPT button in order to install and use the Software. You hereby agree and acknowledge that this Agreement covers all Your use of DBI Software, whether it be from this installation or from any other source, whether installed by You or by third parties. Furthermore, by installing and continuing to use the Software, You agree to be bound by the terms of this Agreement and any new versions hereof.
Electronic Signatures and Agreement(s): You acknowledge and agree that by clicking on the ACCEPT button or similar buttons or links as may be designated by DBI to show Your approval of any foregoing texts and/or to download and install the DBI Software, You are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the DBI Software. Furthermore, You hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.
Jurisdiction’s Restrictions: if You are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this agreement according to age and You are under such a jurisdiction and under such age limit, You may not enter into this Agreement and download, install or use the DBI Software.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO INSTALL THE DBI SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO DBI THE RIGHTS SET FORTH HEREIN. REGARDLESS OF HOW YOU ACQUIRE THE DBI SOFTWARE (ELECTRONICALLY, PRELOADED, ON MEDIA OR OTHERWISE), BY USING IT YOU AGREE TO THESE TERMS.
THE DBI SOFTWARE MAY CONTAIN A TRACKING AND/OR DISABLING DEVICE THAT WILL TRACK ITS USAGE AND PREVENT IT FROM BEING USED UNDER CERTAIN CIRCUMSTANCES. YOU WILL NOT TAMPER WITH THIS DEVICE OR THE DBI SOFTWARE. YOU SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE DBI SOFTWARE CAN NO LONGER BE USED.
1.1 Agreement: this End User License Agreement for Brother-Eagle, as may be renewed, modified or amended from time to time.
1.2 Documentation: any online or other documentation provided by DBI.
1.3 Effective Date: the earlier of the date on which this Agreement is entered into by clicking on the ACCEPT button as stated above, or the date on which you first download, install or use the DBI Software.
1.4 IP Rights: any and all intellectual property rights, including but not limited to copyrights, trademarks and patents, as well as know how and trade secrets contained in or relating to the DBI Software, the Documentation, the DBI Website or the Promotional Materials.
1.5 Online Material: any DBI banner, graphic, logo, etc. located anywhere on the internet, and any link to the DBI Website.
1.6 Promotional Materials: any and all trademarks, names, signs, logos, banners, Online Material and any other materials, in whatever form, owned or used by DBI for the promotion of its company, its products and activities.
1.7 Software: the Brother-Eagle software distributed by DBI, including without limitation the DBI Object Code and Source Code, UI and Documentation, as well as any future programming fixes, updates and upgrades thereof.
1.8 Source Code: a form of the Software in which the program logic is easily deduced by a human being, such as a printed listing of the program, or in an encoded machine readable form such as might be recorded on optical disc, magnetic disc or tape, from which a printed listing can be made by processing it with a computer.
1.9 Object Code: the form of the Software resulting from the translation or processing of Source Code by a computer into a machine language or intermediate code, which is not convenient to human understanding of the program logic, but which is appropriate for execution or interpretation by a computer.
1.10 DBI Staff: the officers, directors, employees and agents of DBI or its affiliates, or any other persons hired by DBI or its affiliates.
1.11 DBI Website: any and all elements, contents and the “look and feel” of the website available, among other URL’s, under the URLs www.database-brothers.com or www.database-brothers.biz , from which websites the DBI Software can be downloaded.
1.12 Terms of Service: means the agreement between DBI and You for the use of the Software;
1.13 UI: the user interface of the DBI Software.
1.14 User Account: refers to the account that You create for Your use of the DBI Software when You register with DBI. You are required to register prior to download, installation, or use of the Software.
1.15 Service: means the services provided under the Terms of Service.
1.16 You: you, the end user of the DBI Software, also used in the form “Your” where applicable.
2.1 Single User License. DBI Software is licensed, not sold. Subject to the terms of this Agreement, DBI hereby grants You a limited, personal, single user, non-commercial, non-exclusive, non-sublicensable, non-assignable, license to download, install and use the DBI Software on Your computer for the sole purpose of personally using the database monitoring applications provided by DBI.
2.2 Prohibitions. You will not sell, assign, rent, lease, sublicense, distribute, copy, provide access to, export, import, act as an intermediary or provider, or in any manner grant rights to third parties with regard to the DBI Software or any part thereof. You will not use the DBI Software other than as contemplated in this Agreement. You will not disclose to any third party the results of any evaluation performed by you using the DBI Software without the prior written consent of DBI. You will not charge any other user for use of the DBI Software. We may audit your use of the DBI Software.
2.3 No Modifications. You will not undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, merging, decompiling, disassembling or hacking of the DBI Software or any part thereof.
2.4 Third Parties. You acknowledge and agree that the DBI Software may be incorporated into, and may incorporate itself, software and other technology owned and controlled by third parties. Any such third party software or technology that is incorporated in the DBI Software falls under the scope of this Agreement. Any and all other third party software or technology that may be distributed together with the DBI Software will be subject to you explicitly accepting a license agreement with that third party. You acknowledge and agree that you will not enter into a contractual relationship with DBI or its affiliates regarding such third party software or technology and you will look solely to the applicable third party and not to DBI or its affiliates to enforce any of your rights.
2.5 Support. DBI will provide no technical support, phone support, or updates to You for the FREE Edition of the DBI Software, or any other purpose. DBI will provide email technical support and/or updates to You for the Professional Edition of the DBI Software; for support, email email@example.com.
2.6 New Versions of the DBI Software. DBI, in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades, to the DBI Software. You acknowledge and agree that DBI has no obligation to make available to You any subsequent versions of the DBI Software. You also agree that you may have to enter into a renewed version of this Agreement, in the event you want to download, install or use a new version of the DBI Software. Furthermore, You acknowledge and agree that DBI, in its sole discretion, may modify or discontinue or suspend Your ability to use any version of the DBI Software, or disable any DBI Software You may already have accessed or installed without any notice to You, for the repair, improvement, or upgrade of the underlying technology or for any other justifiable reason, including but not limited to, circumstances where You, in DBI’s sole judgment and at DBI’s discretion, are in breach of this Agreement, creating problems, possible legal liabilities, acting inconsistently with the letter or spirit of our policies, or engaging in fraudulent, immoral or illegal activities, or for other similar reasons. DBI will have no liability in relation to the direct or indirect damages caused by (1) the release or the absence of release of new versions of the DBI Software and (2) by the suspension or termination of the license or this Agreement by DBI or by You.
2.7 Paid Versus Free Services. This Agreement applies to downloading, installing and using the DBI Software. There are two versions of the DBI Software: Free and Professional. The Free version may be used free of charge. The Professional version requires a payment to DBI in order to download and install it. By downloading or installing the Professional version, you agree to pay to DBI the then current fee charged by DBI for the Professional version. The Professional version may offer some or all of the following advantages over the Basic version: fewer or less intrusive embedded advertisements, ability to customize, and technical email support.
2.8 Relationship Between the Parties. The relationship between You and DBI is that of licensee/licensor. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as agent, employee, franchisee, or in any other capacity. Nothing in this Agreement shall be construed to limit DBI’s right to independently develop or distribute software.
3.1 Distribution of DBI Software. You are not allowed to distribute the DBI Software under this Agreement.
3.2 Any other Exceptions. If You are interested in doing anything other than what is permitted under this Agreement, You will have to obtain DBI’s previous written consent and explicitly agree to any further terms requested by DBI.
3.3 Promotional Materials. Nothing in this Agreement will give You any right to use the Promotional Materials.
4.1 Utilization of Your computer. You hereby acknowledge that the DBI Software may utilize the processor and bandwidth of the computer or other applicable device on which You install or use the DBI Software.
4.2 Protection of Your computer. You understand that the DBI Software will use its commercially reasonable efforts to protect the privacy and integrity of the computer or other applicable device on which you use or install the DBI Software, however, You acknowledge and agree that DBI cannot give any warranties in this respect.
5.1 Confidential Information. You agree to take all reasonable steps at all times to protect and maintain any confidential information regarding DBI, its affiliates, the DBI Staff, the DBI Software and the IP Rights, strictly confidential. You will not copy, disseminate, publish or disclose any of DBI’s confidential, proprietary or trade secret information concerning DBI’s products, technology, services, finances, personnel or business practices or policies, including, without limitation, information relating to research and development, know-how, inventions, specifications, software, and market analysis, research strategies, projections and forecasts.
6.1 Exclusive Ownership. You acknowledge and agree that any and all IP Rights to or arising from the DBI Software are and shall remain the exclusive property of DBI and/or its licensors. Nothing in this Agreement intends to transfer any such IP Rights to, or to vest any such IP Rights in, You. You are only entitled to the limited use of the IP Rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with the IP Rights. You acknowledge and agree that any unauthorized use of the IP Rights is a violation of this Agreement as well as a violation of intellectual property laws, including without limitation copyright laws and trademark laws. You acknowledge and understand that all title and IP Rights in and to any third party content that is not contained in the DBI Software, but may be accessed through use of the DBI Software, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties.
6.2 Release. You hereby release and covenant not to hold liable DBI or its affiliates, or any of their licensees, assigns or successors, for any and all damages, liabilities, causes of action, judgments or claims (a) pertaining to any intellectual property You assert to have been developed by You or any third party that interacts with, uses, or relates to the DBI Software; and (b) which otherwise may arise in connection with Your use of, reliance on, or reference to the DBI Software. DBI and its licensors retain the IP Rights in and to the DBI Software and any derivative works thereto created by or for any other person or entity.
6.3 No Removal of Notices. You agree that You will not remove, obscure, make illegible or alter any advertisements nor any notices or indications of the IP Rights or DBI’s rights and ownership of the IP Rights, whether such advertisements, notices or indications are affixed on, contained in or otherwise connected to the Software or any other materials.
6.4 Translations. You acknowledge and agree that the intellectual property rights regarding any translations made by You of any information on or accessible through the DBI Website or otherwise from DBI at any time prior to or subsequent of the Effective Date will be and remain the sole and exclusive property of DBI without any compensation to You.
7.1 Database Monitoring. Installing DBI Software enables You to monitor certain aspects of database performance.
7.2 No Warranties. DBI cannot guarantee that You will always be able to monitor your database(s), nor can DBI guarantee that You can do so without disruptions, delays or flaws. DBI will not be liable for any such disruptions, delays, flaws or other omissions experienced when using DBI Software.
7.3 Lawful purposes. You acknowledge and agree to use the DBI Software solely for lawful purposes. In this respect You may not, without limitation (a) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the DBI Software, or (b) send any unsolicited commercial communication related to DBI not permitted by applicable law.
8.1 Term. This Agreement will be effective as of the Effective Date and will remain effective until terminated by either DBI or You as set forth below.
8.2 Termination by DBI. Without limiting other remedies, DBI may limit, suspend, or terminate this license and Your use of DBI Software, prohibit access to DBI Website and delete Your User Account and/or User ID, with immediate effect, if we think that You are in breach of this Agreement, creating problems, possible legal liabilities, acting inconsistently with the letter or spirit of our policies, infringing someone else’s intellectual property rights, engaging in fraudulent, immoral or illegal activities, or for other similar reasons. DBI shall effect such termination by providing notice to You to the email address You have provided, and/or by preventing Your access to the respective User Account. We reserve the right to cancel User Accounts that have been inactive for more than one (1) year.
8.3 Termination by You. You may terminate this Agreement with immediate effect at any time, with or without cause and without recourse to the courts, provided that You will meet with the conditions as set forth below in Sections 8.4 and 8.5.
8.4 Consequences of Termination. Upon termination of this Agreement, You (a) acknowledge and agree that all licenses and rights to use the DBI Software shall terminate, and (b) will cease any and all use of the DBI Software, and (c) will remove the DBI Software from all hard drives, networks and other storage media and destroy all copies of the DBI Software in Your possession or under Your control.
8.5 No liability. DBI will not be liable in relation to any damage caused by the termination of this Agreement.
9.1 Representations and Warranties. You represent and warrant that all information provided by You is true and accurate and complete, and that You are authorized to enter into this Agreement and comply with its terms. Furthermore, You represent and warrant that You will at any and all times meet with Your obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of the DBI Software.
9.2 Indemnification. You agree to indemnify, defend and hold DBI, its affiliates and the DBI Staff harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by said parties, in connection with or arising out of Your (a) violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein, or (b) violation of any rights of any third party, or (c) use or misuse or modification of the DBI Software.
9.3 Export Restrictions. You acknowledge that the DBI Software may be subject to international rules that govern the export of software. You agree to comply with all applicable international and national laws that apply to the DBI Software as well as end-user, end-use and destination restrictions issued by national governments. You will not export the DBI Software. You will cooperate with DBI as necessary to ensure compliance with the laws and regulations of the United States and all other relevant countries, relating to exports and re-exports (“Export Laws”). You may not import, export, re-export or transfer, directly or indirectly, including via remote access, any part of the DBI Software, in violation of any such laws and regulations, or without any written governmental authorization required under applicable Export Laws. No part of the DBI Software may be downloaded or transferred or transported or otherwise provided or made available, either directly or indirectly, (i) into Cuba, Iran, Libya, Sudan or any other country subject to U.S. trade sanctions, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals and blocked persons or the U.S. Commerce Department’s Table of Denial Orders. BY EXECUTING THIS AGREEMENT, YOU AGREE TO THE FOREGOING AND REPRESENT AND WARRANT THAT YOU ARE NOT LOCATED IN, UNDER THE CONTOL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.
10.1 No Warranties. THE DBI SOFTWARE IS PROVIDED “AS IS”, WITH NO WARRANTIES WHATSOEVER; DBI DOES NOT, EITHER EXPRESSED, IMPLIED OR STATUTORY, MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE DBI SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE OR A PARTICULAR PURPOSE. DBI FURTHER DOES NOT REPRESENT OR WARRANT THAT THE DBI SOFTWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT DATA LOSS, NOR DOES DBI WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OR ACCURACY OF SERVICE.
10.2 Your own Risk. You acknowledge and agree that the entire risk arising out of the use or performance of the DBI Software remains with You, to the maximum extent permitted by law.
10.3 Jurisdiction’s Limitations. As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You. In such event the liability will be limited as far as legally possible under the applicable legislation.
11.1 No Liability. The DBI Software is being provided to You free of charge or at low cost. ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT DBI, ITS AFFILIATES AND THE DBI STAFF WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM YOUR USE OF THE DBI SOFTWARE, AS SET FORTH BELOW.
11.2 Limitation of Liability. IN NO EVENT SHALL DBI, ITS AFFILIATES OR THE DBI STAFF BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE DBI SOFTWARE, EVEN IF DBI, ITS AFFILIATES OR THE DBI STAFF HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.3 Remedy. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE DBI SOFTWARE IS TO DEINSTALL AND CEASE USE OF SUCH DBI SOFTWARE.
11.4 Jurisdiction’s Limitations. As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You. In such event the liability will be limited as far as legally possible under the applicable legislation.
12.1 New versions of the Agreement. DBI reserves the right to modify this Agreement at any time by providing such revised Agreement to You or by publishing the revised Agreement on the DBI Website. The revised Agreement shall become effective within five (5) days of such publishing or provision to You, unless You expressly accept the revised Agreement earlier by clicking on the ACCEPT button. The express acceptance by You, or Your continued use of the DBI Software, shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement. You can find the latest version of this Agreement at www.Database-Brothers.com/eagle/eula.php . DBI reserves the right to make changes to this Agreement from time to time.
12.2 Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between You and DBI with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
12.3 Partial Invalidity. Should any term or provision hereof be deemed invalid, void or enforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect.
12.4 No waiver. The failure of DBI at any time or times to require performance of any provisions hereof shall in no manner affect its right at a later time to enforce the same unless the same is explicitly waived in writing and signed by DBI.
12.5 No Assignment by You. You are not allowed to assign this Agreement or any rights hereunder.
12.6 Assignment by DBI. DBI is allowed to at its sole discretion assign this Agreement or any rights hereunder, without giving prior notice.
12.7 Force Majeure. DBI is not responsible for failure to fulfill any obligations due to causes beyond its control. Any delay, omission or failure of performance by either party hereto under this Contract other than failure to pay shall not constitute default hereunder or give rise to any claim for breach of contract if, and to the extent, such delay, omission or failure is caused by or arises by reason of Force Majeure. Force Majeure shall mean occurrences beyond the reasonable control of the party affected, including acts of God; strikes, boycotts or other concerted acts of workmen; laws, regulations or other orders of public authorities; military action, state of war or other national emergency; failure of utilities; fire, tornado, hurricane, flood or other severe weather event which, by the exercise of reasonable diligence, the delayed party is unable to prevent or provide against.
12.8 Survival. Termination of this Agreement shall be in addition to and not in lieu of any legal or equitable remedies available to the parties. The provisions of Sections 2.7 (Paid versus Free Services), 6.1 (Exclusive Ownership), 5.1 (Confidential Information), 10.1 (No Warranties), 9.2 (Indemnification), and Article 11 (Limitation of Liability) immediately above shall survive termination of the Agreement.
12.9 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas without giving effect to the conflict of laws provisions of the State of Texas or Your actual state or country of residence, and the parties hereby waive any right to object to personal jurisdiction and venue. The UN Convention on Contracts for the International Sale of Goods does not apply. In the event of litigation to enforce the terms and conditions of this Agreement, the losing party agrees to pay the prevailing party’s costs and expenses incurred including, without limitation, reasonable attorneys’ fees.
12.10 Tax. You are solely responsible for any personal property taxes assessed on you by the government of your locality for the DBI Software from the date you acquire it.
12.11 Open Source "Open Source" software - software available without charge for use, modification and distribution - is often licensed under terms that require the user to make the user's modifications to the Open Source software or any software that the user “combines” with the Open Source software freely available in source code form. If you use Open Source software in conjunction with the DBI Software, you must ensure that your use does not: (i) create, or purport to create, obligations of us with respect to the DBI Software; or (ii) grant, or purport to grant, to any third party any rights to or immunities under our intellectual property or proprietary rights in the DBI Software. For example, you may not develop a software program using DBI Software and an Open Source program where such use results in a program file(s) that contains code from both the DBI Software and the Open Source program (including without limitation libraries) if the Open Source program is licensed under a license that requires any "modifications" be made freely available. You also may not combine the DBI Software with programs licensed under the GNU General Public License ("GPL") in any manner that could cause, or could be interpreted or asserted to cause, the DBI Software or any modifications thereto to become subject to the terms of the GPL.
12.12 Notices. Any and all notices permitted or required to be given hereunder shall be in writing and shall be deemed duly given: (i) upon actual delivery, if delivery is by hand; (ii) upon receipt by the transmitting party of confirmation or answer back, if delivery is by Telex, telegram, facsimile or electronic mail; (iii) upon delivery into the United States mail, if delivery is by first class postage paid, registered or certified return-receipt-requested mail, or (iv) upon date of receipted delivery by nationally-recognized overnight carrier. Each such notice shall be sent to the representative of the respective party or its successor at the address indicated in the first paragraph of this Agreement, or to any other address the respective party may designate by notice given pursuant to this Section.
12.13 Forum. Any legal proceedings arising out of or relating to this Agreement will be subject to the jurisdiction of the courts of Travis County, Texas.
12.14 Language; References; Headings. The original English version of this Agreement may have been translated into other languages. In the event of inconsistency or discrepancy between the English version and any other language version of this Agreement, the English language version shall prevail. All references in this Agreement to the singular shall include the plural where applicable. Titles and headings to sections or paragraphs in this Agreement are inserted for convenience of reference only and are not intended to affect the interpretation or construction of this Agreement.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO INSTALL THE DBI SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO DBI THE RIGHTS SET FORTH HEREIN.
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