| END USER LICENSE AGREEMENT FOR DMT SOFTWARE |
Software is licensed per user. For
example, if you and two of your colleagues are using the
software you will need 3 licenses. However, if you are the
only person using the software but you need to use it on two
machines, you will only need one license.
The following information is the full license agreement
found in the software.
IMPORTANT NOTICE: Please carefully read this License
Agreement:
BY DOWNLOADING, INSTALLING AND/OR USING THE SOFTWARE OR
CLICKING "I ACCEPT" WHEN PROMPTED IN CONJUNCTION THEREWITH,
YOU ("LICENSEE") ACCEPT ALL OF THE TERMS AND CONDITIONS OF
THIS LICENSE. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF
ANOTHER PERSON OR LEGAL ENTITY, YOU REPRESENT AND WARRANT
THAT YOU HAVE FULL LEGAL AUTHORITY TO ACCEPT ON BEHALF OF
AND BIND THAT PERSON OR LEGAL ENTITY TO THESE TERMS.
LICENSE FOR SOFTWARE
1. DEFINITIONS
"Computer" any electronic device that
accepts information in digital or similar form and
manipulates it for a specific result based on a sequence of
instructions;
"Intellectual Property Rights" all
intellectual and industrial property rights including
patents, know-how, moral rights, registered trade marks,
registered designs, utility models, applications for and
rights to apply for any of the foregoing, unregistered
design rights, unregistered trade marks, rights to prevent
passing off for unfair competition and copyright, database
rights, topography rights and any other rights in any
invention, discovery or process, in each case in the United
Kingdom and all other countries in the world and together
with all renewals and extensions;
"License" the rights granted to the
Licensee in relation to the specific defined version of the
Software under this Agreement. The Software is licensed, not
sold, and no rights are granted other than those expressly
set forth in this License;
"Licensee" (a) the person who installs the
Software and/or Synchronization Toolkit on a Computer for
his own personal use; or (b) where the Software and/or
Synchronization Toolkit is installed onto a Computer on
behalf of an employer, another person, or entity the
employer, other person or organization on whose behalf the
Software and/or Synchronization Toolkit has been installed;
"License Fee(s)" the fees payable by the
Licensee to the Licensor excluding VAT and all other
relevant taxes where applicable, as detailed by the Licensor
from time to time.
"Licensor" DMT Software Inc;
"Software" Any one or more than one of the
following software components in executable form only: SQL
Block Monitor, SQL Decryptor (including any related manuals,
help files or other documentation and packaging) licensed to
the Licensee by the Licensor under this License;
2. INTERPRETATION
2.1 Installing
Any references to "install", "installing" "installation" or
"installed" in connection with the Software and/or
Synchronization Toolkit include the downloading of the
Software and/or Synchronization Toolkit from the Licensor's
or any third party's remote server.
2.2 Headings
The headings to the clauses and Schedules of this License
are for convenience only and will not affect its
construction or interpretation.
2.3 Days/Months
Any reference to a "day" or a "Business Day" will mean a
period of 24 hours running from midnight to midnight. Any
reference to "month" means a calendar month.
3. EVALUATION LICENSE
3.1 Licensor grants Licensee the right to use the Software
and/or Synchronization Toolkit upon the terms and conditions
of this License for a period of 14 days ("Evaluation
Period") for the purpose of evaluating whether or not the
Software and/or Synchronization Toolkit meet the Licensee's
requirements.
3.2 Upon expiry of the Evaluation Period:
3.2.1 The Licensee will, where the Software and/or
Synchronization Toolkit has met Licensee's requirements, and
where Licensee wishes to enter into a full License, become
fully bound by this License and pay to Licensor the License
Fee(s).
3.2.2 In the event that the Software and/or Synchronization
Toolkit does not meet the Licensee's requirements, or where
Licensee otherwise does not wish to enter into a full
License, Licensee shall return or destroy (as Licensee shall
instruct) the Software and/or Synchronization Toolkit and
all copies, in whole or in part, in any form including
partial copies or modifications of the Software and/or
Synchronization Toolkit received from the Licensor or made
in connection with this License and all documentation
relating thereto and Licensee shall provide Licensor with a
certificate (if requested) certifying that the same has been
done and any rights of the Licensee to use the Software
shall cease.
4. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
4.1 The Licensee's only right to use the Software and/or
Synchronization Toolkit is by virtue of this License and the
Licensee acknowledges that all Intellectual Property Rights
in or relating to the Software and/or Synchronization
Toolkit and all parts of the Software and/or Synchronization
Toolkit are and shall remain the exclusive property of the
Licensor.
4.2 The Licensee further acknowledges that all Intellectual
Property Rights in or relating to any improvement,
modification or adaptation of the Software and/or
Synchronization Toolkit arising directly or indirectly from
the Licensee using the Software and/or Synchronization
Toolkit are and shall remain the exclusive property of the
Licensor. As such the Licensee hereby assigns to the
Licensor, with full title guarantee, all such improvements,
modifications or adaptations with the intention that such
improvements, modifications or adaptations should forthwith,
upon creation, vest in the Licensor. The Licensor hereby
grants to the Licensee a license to use such improvements,
modifications or adaptations on the same terms as the
License to use the Software set out in this License.
4.3 The Licensee agrees that it shall not remove or alter
any trademarks, copyright notices or similar proprietary
devices, including without limitation any electronic
watermarks or other identifiers, that may be incorporated in
the Software and/or Synchronization Toolkit or any copy of
the Software and/or Synchronization Toolkit.
5. LICENSE
5.1 Provided that the Licensee has paid the appropriate
License Fees and subject to clause 5.5 and clause 6 in
relation to the Synchronization Toolkit and to the rights of
the Licensor to terminate the License under this Agreement,
the Licensor grants to the Licensee, in the country where
the Software and/or Synchronization Toolkit was downloaded,
for the term of this License a limited, personal,
non-exclusive, non-sub-licensable and non-transferable
license to:
5.1.1 use and copy the Software and/or Synchronization
Toolkit for use subject to clause 5.4 on a single computer
owned, leased and/or controlled by the Licensee or its
employer or organization for whom the Licensee has installed
the Software and/or Synchronization Toolkit for internal
use;
5.1.2 make one copy of the Software and/or Synchronization
Toolkit in machine readable form for normal operational
security and back-up purposes provided that such copy is not
installed on any computer at any time when the original copy
of the Software and/or Synchronization Toolkit supplied to
the Licensee is installed upon any computer. This License
will apply to such copy as it applies to the original copy
of the Software and/or Synchronization Toolkit installed by
the Licensee. Such copy and the media on which it is stored
will be the property of the Licensor and the Licensee shall
ensure that such copy bears the Licensor's proprietary
notice.
5.2 All rights not expressly granted to the Licensee under
this License are reserved to the Licensor, and the Licensee
agrees not to take or permit any action with respect to the
Software and/or Synchronization Toolkit that is not
expressly authorized under this License. For the avoidance
of doubt the Licensee has no right to use, incorporate into
other products, copy, publish, display, modify, translate
the Software and/or Synchronization Toolkit or any
modification, adaptation or copy of the Software and/or
Synchronization Toolkit or any part thereof, nor to
decompile, reverse engineer, or disassemble the source code
of the Software and/or Synchronization Toolkit, either in
whole or in part, other than as expressly permitted under
the License or under Art. 50(A) and (B) of the UK Copyright,
Designs and Patents Act 1988 or other applicable law.
5.3 If the Licensee breaches clause 5 or clause 6 the
License or rights granted in clause 5 or clause 6 will
automatically terminate. In respect of rights granted to
third parties under clause 6, upon termination hereunder the
Licensee shall assign the benefit of rights granted to the
Licensor.
5.4 The Software and/or Synchronization Toolkit is licensed
to the Licensee only. Except as permitted by this License
under clause 5.5 and clause 6 in relation to the
Synchronization Toolkit, the Licensee may not rent, lease,
sub-license, sell, assign, pledge the Software and/or
Synchronization Toolkit, on a temporary or permanent basis
without the prior written consent of the Licensor.
5.5 Subject to clause 6, the Licensee may use or incorporate
up to 100 copies of any set of the files which comprise
Synchronization Toolkit and which are listed in Schedule 1
into up to 100 future products for onward distribution or
internal use (the "Licensed Products") on license terms
substantially similar as those contained herein.
5.6 If Licensee does use and/or distribute any of the files
listed in Schedule 1 (the "Licensed Materials") in
accordance with clause 5.5 and clause 6, the Licensee agrees
to comply with the following provisions:
5.6.1 Licensee will distribute solely as part of a
specific-purpose application program written using an
authorized copy of Synchronization Toolkit;
5.6.2 Licensee remains solely responsible for support,
service, upgrades and technical or other assistance;
5.6.3 Licensee will not use the name or logo of Licensor
without Licensor's written permission;
5.6.4 Licensee will not copy, modify, translate, decompile
or disassemble the source code of Synchronization Toolkit
other than as expressly permitted under the License or under
Art. 50(A) and (B) of the UK Copyright, Designs and Patents
Act 1988 or other applicable law;
5.6.5 Licensee will indemnify and keep indemnified and hold
Licensor harmless from and against all costs (including the
costs of enforcement), expenses, liabilities, injuries,
direct, indirect or consequential loss, or pure economic
loss, or loss of profits, or loss of business, or loss of
employment, or depletion of goodwill and like loss arising
out of the use, reproduction or distribution of Licensed
Products incorporating Licensed Materials;
5.6.6 Licensee will ensure that the third party complies
with the terms of this License; and
5.7 Licensee will not use the Licensed Materials,
Synchronization Toolkit or the Software to manufacture or
distribute a product that is substantially similar to or
competitive with Licensor's Software and/or Synchronization
Toolkit.
6. DISTRIBUTION OF SYNCHRONIZATION TOOLKIT
6.1 Licensee will keep full and accurate records for copies
and supplies of Licensed Products and shall, if requested,
supply Licensor with a statement giving details of all
Licensed Products supplied to any person.
6.2 The Licensee agrees that the Licensor shall have the
right (where Licensor reasonably suspects that the terms of
clause 5 or clause 6 have not been complied with) upon
reasonable notice to enter the Licensee's premises to audit
any computer system or electronic media onto which the
Software and/or Synchronization Toolkit, Licensed Materials
or any adaptation, modification or copy of the Software,
Synchronization Toolkit and/or Licensed Materials has been
installed in order to verify compliance with this License,
provided that prior to exercising such right to audit the
Licensor shall if required by the Licensee enter into an
appropriate and reasonable confidentiality agreement.
6.3 Licensee shall only be permitted to distribute a maximum
of 100 copies of Synchronization Toolkit or any part
thereof. If Licensee wishes to distribute 101 or more copies
of Synchronization Toolkit or any part thereof then Licensee
must apply in writing to Licensor, at Licensor's registered
office, requesting a full commercial license which will be
subject to the payment of royalties as agreed between the
parties.
6.4 In accordance with the right to audit set out in clause
6.2 the Licensor shall also have the right to audit through
independent certified public accountants, who agree to abide
by the Confidentiality provisions of this Agreement all
records and accounts of Licensee which contain information
bearing upon the amount of Licensed Products licensed, sold
or distributed by the Licensee. Such examinations and audits
shall be completed at Licensor's expense and to the extent
an examination and audit reveals more than 100 copies of
Licensed Products incorporating Licensed Materials having
been made, distributed, sold or licensed, an appropriate
payment shall be made promptly by the Licensee to the
Licensor to reflect and agreed amount of royalties due in
relation to such Licensed Products, otherwise the Licensor
may terminate the License under clause 5.3.
6.5 For the avoidance of doubt, all Licenses acquired by a
Licensee shall be aggregated for the purposes of clause 6.
7. CONFIDENTIALITY
7.1 The structure, organization and source code of the
Software and/or Synchronization Toolkit are the valuable
trade secrets and proprietary confidential information of
the Licensor and its licensors. The Licensee agrees not to
provide or disclose any such confidential information in the
Software and/or Synchronization Toolkit or derived from it
to any third party, including where such confidential
information is derived under any applicable law as set out
in clause 5.2.
7.2 The provisions of clause 7.1 will not apply to any
information which is:
7.2.1 lawfully obtained free of any duty of confidentiality
(otherwise than directly or indirectly from the Licensor);
or
7.2.2 already in the Licensee's possession, provided that
Licensee can show such possession from written records
(other than as a result of a breach of this clause 7); or
7.2.3 which the Licensee can demonstrate is in the public
domain (other than as a result of a breach of this clause
7); or
7.3 To the extent that any information is necessarily
disclosed pursuant to a statutory or regulatory obligation
or court order, such disclosure shall not be a breach of
this clause 7.
8. WARRANTY
8.1 The Software and/or Synchronization Toolkit is provided
"as is" with no representation, guarantee or warranty of any
kind as to its functionality. All other terms, conditions
and warranties expressed or implied whether statutorily or
otherwise are hereby expressly excluded.
9. LIMITATION AND EXCLUSION OF LIABILITY
9.1 The Licensor does not exclude its liability (if any) to
the Licensee:
9.1.1 where the Licensee is not trading as a business, for
breach of the Licensor's obligations arising under section
12 Sale of Goods Act 1979 or section 2 Supply of Goods and
Services Act 1982; or
9.1.2 for personal injury or death resulting from the
Licensor's negligence; or
9.1.3 under section 2(3) Consumer Protection Act 1987; or
9.1.4 for any matter for which it would be illegal for the
Licensor to exclude or to attempt to exclude its liability;
or
9.1.5 for fraud.
9.2 THE LICENSOR MAKES NO EXPRESS WARRANTIES WITH RESPECT TO
THE SOFTWARE AND/OR SYNCHRONIZATION TOOLKIT AND THE LICENSOR
HEREBY EXCLUDES TO THE FULLEST EXTENT PERMISSIBLE IN LAW,
ALL CONDITIONS, WARRANTIES (INCLUDING WITHOUT LIMITATION ANY
WARRANTY THAT THE SOFTWARE AND/OR SYNCHRONIZATION TOOLKIT
WILL MEET THE LICENSEE'S REQUIREMENTS OR THAT ITS OPERATION
WILL BE UNINTERRUPTED OR ERROR FREE) AND STIPULATIONS,
EXPRESS (OTHER THAN THOSE SET OUT IN THIS LICENSE) OR
IMPLIED, STATUTORY, CUSTOMARY OR OTHERWISE WHICH, BUT FOR
SUCH EXCLUSION, WOULD OR MIGHT SUBSIST IN FAVOUR OF THE
LICENSEE. EXCEPT AS SET OUT IN THIS LICENSE THE LICENSEE
ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF
THE SOFTWARE AND/OR SYNCHRONIZATION TOOLKIT AND SHOULD THE
SOFTWARE AND/OR SYNCHRONIZATION TOOLKIT PROVE DEFECTIVE, THE
LICENSEE (AND NOT THE LICENSOR) ASSUMES THE ENTIRE COST OF
ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
9.3 SUBJECT TO CLAUSE 9.2, THE LICENSOR SHALL NOT BE LIABLE
TO THE LICENSEE FOR ANY OF THE FOLLOWING TYPES OF LOSS OR
DAMAGE ARISING UNDER OR IN RELATION TO THIS AGREEMENT
(WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF
STATUTORY DUTY, RESTITUTION OR OTHERWISE):-
9.3.1 ANY LOSS OF PROFITS, BUSINESS, CONTRACTS, ANTICIPATED
SAVINGS, GOODWILL, OR REVENUE; OR
9.3.2 ANY LOSS OR CORRUPTION OF DATA; OR
9.3.3 ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE
WHATSOEVER,
EVEN IF THE LICENSOR HAS BEEN ADVISED IN ADVANCE OF THE
POSSIBILITY OF SUCH LOSS OR DAMAGE.
9.4 SUBJECT TO CLAUSES 9.1 AND 9.3, THE LICENSOR'S AGGREGATE
LIABILITY UNDER THIS LICENSE WHATSOEVER (WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY
DUTY, RESTITUTION OR OTHERWISE) FOR ANY INJURY, DEATH,
DAMAGE OR DIRECT LOSS HOWSOEVER CAUSED (OTHER THAN FOR DEATH
OR PERSONAL INJURY CAUSED BY THE LICENSOR'S NEGLIGENCE) WILL
BE LIMITED TO THE PRICE PAID FOR THE SOFTWARE AND/OR
SYNCHRONIZATION TOOLKIT.
9.5 The Licensee acknowledges that the above provisions of
these clauses 8 and 9 are reasonable and reflected in the
price which would be higher without those provisions, and
the Licensee will accept such risk. In the event that any of
the limitations or exemptions in this Agreement shall be
found to be void clauses 8 and 9 shall be construed in
accordance with clause 14.
10. TERM AND TERMINATION
10.1 This License shall commence upon the earlier of the
Licensee's acceptance of this License and shall continue
until terminated in accordance with clause 10.2 or otherwise
in accordance with this License.
10.2 This License will terminate automatically if the
Licensee uninstalls the Software and/or Synchronization
Toolkit, fails to comply with any term or condition of this
License or uninstalls and destroys or voluntarily returns
the Software and/or Synchronization Toolkit to the Licensor.
10.3 The Licensor may terminate this License immediately and
without notice if it reasonably suspects that Licensee is
using the Software and/or Synchronization Toolkit for any
purpose which contravenes the laws of England and Wales.
Licensee's sole remedy in this circumstance shall be limited
to the purchase price of the Software and/or Synchronization
Toolkit.
10.4 Upon termination of this License for any reason
whatsoever the Licensee must uninstall the Software and
destroy, and upon request of the Licensor certify the
destruction of, all copies of the Software including all
components of it in the Licensee's possession.
10.5 The termination of this License howsoever arising is
without prejudice to the rights, duties and liabilities of
either party accrued prior to termination.
On termination of this License howsoever arising clause 4
(Ownership of Intellectual Property Rights), clause 7
(Confidentiality), clause 10 (Term and Termination), clause
8 (Warranty), clause 9 (Limitation and Exclusion of
Liability), clause 12 (Governing Law and Jurisdiction),
clause 13 (compliance with Applicable Law) and clause 18
(Revision to Terms) will remain in effect.
11. LICENSEE INDEMNITY FOR MISUSE
11.1 If a third party claims that the Software Licensed
under this Agreement to the Licensee, as a result of the
Licensees misuse of the Software, causes loss or damage
whether in contract, tort (including negligence), breach of
statutory duty, restitution or otherwise, then the Licensee
shall indemnify the Licensor from any such loss or damage.
12. GOVERNING LAW AND JURISDICTION
12.1 The formation, existence, construction, performance,
validity and all aspects whatsoever of this License or of
any term of this License will be governed by the law of
England and Wales.
12.2 Subject to clause 12.3 the courts of England and Wales
will have exclusive jurisdiction to settle any disputes
which may arise out of or in connection with this License.
The parties irrevocably agree to submit to that
jurisdiction.
12.3 The agreement contained in clause 12.1 above is
included for the benefit of the Licensor. Accordingly the
Licensor retains the right to bring proceedings in any other
court of competent jurisdiction. The Licensee irrevocably
waives any objection to, and agrees to submit to, the
jurisdiction of such other courts.
12.4 The Licensee irrevocably agrees that a judgment or
order of any court referred to in this clause is conclusive
and binding upon it and may be enforced against it in the
courts of any other jurisdiction.
13. COMPLIANCE WITH APPLICABLE LAW
The Licensee acknowledges and agrees that notwithstanding
the fact that this License is governed by the laws of
England and Wales, the Licensee may be subject to additional
laws in other jurisdictions with respect to the Licensee's
use of the Software and/or Synchronization Toolkit. The
Licensee will comply with the laws of any jurisdiction that
apply to the Software and/or Synchronization Toolkit,
including without limitation any applicable export laws or
regulations.
14. SEVERABILITY
If any clause or part of this License is found by any court,
tribunal, administrative body or authority of competent
jurisdiction to be illegal, invalid or unenforceable then
that provision will, to the extent required, be severed from
this License and will be ineffective without, as far as is
possible, modifying any other clause or part of this License
and this will not affect any other provisions of this
License which will remain in full force and effect.
15. NO WAIVER
No failure or delay by any party to exercise any right,
power or remedy will operate as a waiver of it nor will any
partial exercise preclude any further exercise of the same,
or of some other right, power or remedy.
16. NO THIRD PARTY RIGHTS
The parties to this License do not intend that any of its
terms will be enforceable by virtue of the Contracts (Rights
of Third Parties) Act 1999 by any person not a party to it
and all rights by virtue of the Contracts (Rights of Third
Parties) Act are hereby excluded.
17. ENTIRE AGREEMENT
This License contains all the terms which the parties have
agreed in relation to the subject matter of this License and
supersedes any prior written or oral agreements,
representations (save for any fraudulent misrepresentations)
or understandings between the parties in relation to such
subject matter.
18. REVISIONS TO TERMS
The Licensor reserves the right to revise the terms of this
License by updating the License on its website, or by
notifying the Licensee by post or by email. The Licensee is
advised to check this License periodically for notices
concerning revisions. The Licensee's continued use of the
Software and/or Synchronization Toolkit shall be deemed to
constitute acceptance of any revised terms.
19. NO ASSIGNMENT
The Licensee may not assign the benefit (including any
present, future or contingent interest or right to any sums
or damages payable by either party under or in connection
with this License) or delegate the burden of this License or
hold this License on trust for any other person.
20. ACCEPTANCE OF LICENSE
The Licensee will be deemed to have accepted the terms of
this License by installing the Software and/or
Synchronization Toolkit onto any computer. |
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