The individual installing or using this software represents and warrants that he or
she has authority to enter into this Agreement with Gudu Software on behalf of the
Licensee, that he or she has read the terms and conditions set out herein and
that the Licensee accepts and agrees to be bound by this Agreement. If the
Licensee does not agree with the terms and conditions, the Licensee must not
use or permit the use of the Product.
1. Definitions
Authorized Machine means a single installation of a copy of the Product on a
single physical computer.
Authorized Use means the defined number of copies or instances of the Product
that may be used by Licensee, and where applicable, limited to the number of
Authorized Machines, as designated in the Quote/Receipt/Invoice issued by
Gudu Software.
Authorized Users means the number of Authorized Machines, as designated in
the Quote/Receipt/Invoice issued by Gudu Software.
Authorized User means a person or user account who is licensed to use the
Product, regardless of whether that person is an employee, contractor,
subcontractor, vendor, partner or customer of the Licensee.
Commencement Date means the date that Gudu Software processes payment of the
License or Maintenance Fees from Licensee.
Desktop Version means a version of the Product that works outside host application
such as Visual studio or SQL Server management studio , as a standalone application.
Add-In Version means a version of the Product that works inside Visual studio
or SQL Server management studio.
License means the right to use the Product as defined by Authorized Use.
Licensee means the individual or entity (inclusive of affiliates and subsidiaries)
that has licensed the Product under the terms and conditions of this Agreement.
Product means the Gudu Software product defined in the Quote/Receipt/Invoice
delivered by Gudu Software to Licensee, including any documentation and updates
provided under the terms of this Agreement in accordance with Clause 5.
Protected Code means source code contained within the Product that is
protected against access by Gudu Software.
2. License Fee
A one-time fee paid by Licensee to Gudu Software, as designated by Product, in
consideration for the Authorized Use of the Product. License fee is nonrefundable
and payable upon acceptance of the terms and conditions set out
herein.
3. Grant of License
Subject to the terms of this Agreement, including limitations defined by the
License, Gudu Software hereby grants to Licensee, and Licensee accepts from
Gudu Software, a perpetual, irrevocable, fully-paid, worldwide, non-exclusive, nontransferable
(except pursuant to Clause 18 below), non-sublicensable (except to
Licensee's related entities) License to use the Product as defined by Authorized
Use.
4. No Warranty
Except as described in this Agreement and save as provided in Clauses 13 and
14 below, the Product is provided on an "as is" and "as available" basis without
warranty, express or implied, of any kind or nature, including, but not limited to,
any warranties of performance or merchantability or fitness for a particular
purpose, including without limitation that Gudu Software does not warranty that the
Product will be error-free, complete, or correct. Gudu Software provides evaluation
copies of the Product so that customers can assess the Product.
5. Gudu Software's Obligations
Upon receipt of Licensee Fee from Licensee, Gudu Software will (a) supply the
Licensee with the Product via electronic download; and (b) provide Software
Maintenance as defined in Clause 6 below.
6. Software Maintenance
6.1. For Add-in Versions
Software Maintenance includes Gudu Software's provisioning to Licensee Product
updates and/or enhancements made generally available to customers from time
to time, and online technical support to
one Licensee-designated technical contact for the sole purpose of addressing
technical issues relating to the use of the Product (excluding any form of on-site
visits by Gudu Software personnel or contractors), for a period of twelve (12) months
from the Commencement Date (the "Add-in Initial Maintenance Period"). The
Add-in Initial Maintenance Period may be renewed for additional twelve (12)
month periods ("Renewal Period") at Licensee's sole and absolute discretion at
the then-current rate for Software Maintenance. Subsequent Renewal Periods
commence upon the expiration of the prior Software Maintenance regardless of
when it is purchased.
6.2. For Desktop Versions
If Licensee has purchased an Add-in Version of the Product, support for the
Desktop Version will be provided with the terms specified in Clause 6.1 above.
Otherwise Software Maintenance includes Gudu Software's provisioning to Licensee
Product updates and/or enhancements made generally available to customers
from time to time, and online technical support via email only to one Licensee-designated technical
contact for the sole purpose of addressing technical issues relating to the use of
the Product, for a period of twelve (12) months from the Commencement Date
(the "Desktop Initial Maintenance Period"). No additional support will be provided
after the Desktop Initial Maintenance Period.
6.3 For APIs
If Licensee has purchased an Add-in Version of the Product, support for the
APIs Version will be provided with the terms specified in Clause 6.1 above.
Otherwise Software Maintenance includes Gudu Software's provisioning to Licensee
Product updates and/or enhancements made generally available to customers
from time to time, and online technical support via email only to one Licensee-designated technical
contact for the sole purpose of addressing technical issues relating to the use of
the Product, for a period of twelve (12) months from the Commencement Date
(the "APIs Initial Maintenance Period"). No additional support will be provided
after the APIs Initial Maintenance Period.
You can't use this API to create a competitor product of SQL Pretty Printer.
7. Licensee Obligations
The Licensee must at all times: (a) ensure that only an Authorized User may use
the Product and only for Authorized Use in accordance with the terms and
conditions of this Agreement; (b) promptly advise Gudu Software, including in writing, if
the Licensee becomes aware of any unauthorized use or distribution of the
Product by any person.
8. Unauthorized Use or Distribution
Licensee may not, whether through deliberate or negligent act or act of omission,
distribute or cause the distribution of the Product to any third party other than an
Authorized User.
9. Investigation of Unauthorized Use and Distribution
If Gudu Software reasonably suspects that the Product has been distributed to or
obtained by any person or party without Gudu Software's prior written consent,
Gudu Software has the right to reasonably request once per calendar year from the
Licensee an unqualified certificate executed by the Licensee's auditor at the
Licensee's cost for the purpose of verifying compliance with Authorized Use of
the Product.
10. Licensee's Restrictions
Licensee will not, without the prior written consent of Gudu Software, which may be
withheld in Gudu Software's sole discretion and which may include certain conditions:
(a) decompile, reverse engineer, disassemble, analyze, modify, adapt, convert,
create derivative works from, or otherwise attempt to derive, the Protected Code;
(b) sell, sublicense, redistribute, reproduce, transmit, circulate, disseminate,
translate or reduce to or from any electronic medium or machine readable form
the Product or any data/information provided to the Licensee through the Product
to a person (except that nothing in Clause 10(b) is intended to prevent an
Authorized Person undertaking Authorized Use);
(c) vary or amend the Authorized Use without Gudu Software's prior written approval;
(d) publish, promote, broadcast, circulate or refer publicly to the Gudu Software name,
trade name, trademark, service mark or logo or
(e) commit any act or omission the likely result of which is that Gudu Software's
reputation will be brought into disrepute or which act or omission could
reasonably be expected to have or does have a material and adverse effect on
Gudu Software's interests.
In addition, the Product includes license protection mechanisms that are
designed to manage and protect the intellectual property rights of Gudu Software.
Licensee must not modify or alter those features to try to defeat the Product use
rules that the license protection mechanisms are designed to enforce.
11. Term
The term of this Agreement begins on the Commencement Date and will
continue in full force and effect unless terminated in accordance with Clause 12
below.
12. Termination
Licensee may terminate this Agreement at any time by destroying all copies of
the Product in its possession. Either party hereto may terminate this Agreement if
the other party commits a material breach and such party does not cure such
material breach within thirty (30) days of written notice of such breach. Licensee
agrees upon termination of this License to destroy all copies of the Product in
your possession. Clauses 1, 4, 8 - 10, 13 - 24 shall survive any termination of
this Agreement.
13. Infringement Indemnification
(a) Gudu Software will defend, indemnify, hold Licensee and its directors, officers,
employees and other agents (collectively, "Licensee Indemnitees") harmless, at
Gudu Software's sole cost and expense, any action brought against any Licensee
Indemnitee based upon the claim that the Product, if used within the scope of the
License granted under this Agreement, infringes, violates, or misappropriates a
patent, trademark, copyright, trade secret, or other intellectual property or
proprietary right ("IP Claim"); provided, however, that: (i) Licensee shall notify
Gudu Software promptly in writing of any such IP Claim; (ii) Licensee shall not enter
into any settlement or compromise on any IP Claim without Gudu Software's prior
written consent; (iii) Gudu Software shall have sole control of any such action and
settlement negotiations so long as there is no detriment or liability to Licensee;
and (iv) Licensee shall provide Gudu Software with reasonable information and
assistance, at Gudu Software's request and sole cost and expense, necessary to
settle, defend, indemnify or hold harmless such IP Claim. The
foregoing states the sole liability of Gudu Software and the exclusive remedy of
Licensee for any infringement of intellectual property rights by the Product or any
other items provided by Gudu Software hereunder.
(b) If the Product becomes, or in the opinion of Gudu Software may become, the
subject of a claim of infringement of any third party right, Gudu Software may, at its
option and in its discretion promptly: (i) procure for Licensee the right to use the
Product free of any liability; (ii) replace or modify the Product to make it noninfringing;
or (iii) refund any License Fees related to this Product paid by
Licensee.
(c) Exclusions from Defense Obligation. Gudu Software will have no duty to defend
any IP Claim to the extent such IP Claim is based on: (i) use of a superseded
release of the Product, if such infringement would have been avoided by the use
of a current release of the Product and Gudu Software timely notified Licensee of the
availability of the non-infringing Product at no additional cost; (ii) the combination,
operation, or use of the Product with programs or data not furnished by Gudu Software
or at Gudu Software's direction, or with hardware or operating system software other
than the hardware platform and operating system with which the Product is
designed to function, if such infringement would have been avoided by the use of
the Product without such programs, data, hardware or operating systems; (iii)
modification or attempted modification of the Product by anyone except Gudu Software
or at Gudu Software's direction, or use or distributions of such modifications; or (iv)
Licensee's use of the Product in a manner that results in defamation, violates the
privacy rights of individuals, transmits material in violation of any applicable law,
rule, regulation, or uses any proprietary thirty party content without legally binding
consent of such third party.
(d) To the extent an IP Claim is excluded from Gudu Software's defense obligation, is
based upon the claim that any modifications to the Product or combination of the
Product with products, not provided by Gudu Software or at Gudu Software's direction,
infringes or violates any third party, Licensee will defend or settle, at its expense,
any action brought against Gudu Software provided, however, that: (i) Gudu Software shall
notify Licensee promptly in writing of any such claim; (ii) Gudu Software shall not enter
into any settlement or compromise any such claim without Licensee's prior
written consent; (iii) Licensee shall have sole control of any such action and
settlement negotiations; and (iv) Gudu Software shall provide Licensee with
information and assistance, at Licensee's request and expense, necessary to
settle or defend such claim. Licensee agrees to pay all damages and costs finally
awarded against Gudu Software attributable to such claim. Gudu Software may elect to
assume control of the defense and settlement of any such claim with counsel of
its choosing; provided however, that if Licensee will not have breached its
defense and settlement obligations hereunder, Licensee will have no obligation
to pay the costs and expenses of such Gudu Software-controlled defense or
settlement. The foregoing states the sole liability of Licensee and the exclusive
remedy of Gudu Software for any infringement of intellectual property rights by the
Licensee modifications or combinations or any other items provided by Licensee
hereunder.
(e) Notwithstanding Clause 13(a) above, Gudu Software assumes no liability
hereunder for, and shall have no obligation to defend Licensee or to pay costs,
damages or attorney's fees for, any claim based upon any modifications to any of
the Product not approved by Gudu Software or at Gudu Software's direction or combination
of any of the Product with products not approved by Gudu Software or at Gudu Software's
direction.
14. Limitation of Liability
Excluding breaches of Gudu Software's indemnification obligations described in
Clause 13 hereof, neither party hereto will be liable to any third-party for any loss,
damage, cost, expense or other claim (including consequential, directly, indirect,
special, punitive or other damages and loss of data or profits) in relation to this
Agreement or the Product including, without limitation: (a) any use or reliance on
a Product by the third-party (including the form and content of errors in and/or
omissions from any information contained in a Product); (b) any delay,
interruption or other failure in the provision of the Product; or (c) any change in
the form or content of the Product. Excluding breaches of Gudu Software's
indemnification obligations described in Clause 13 hereof, in no event will either
party's liability under any claims arising out of this Agreement exceed the fees
paid by licensee under this Agreement. Except for each party's indemnification
obligations or breach of Clauses 2 ("Licensee Fee"), 8 ("Unauthorized Use or
Distribution"), or 10 ("Licensee's Restrictions"), neither party will be liable for lost
profits or for special, indirect, incidental or consequential damages, regardless of
the form of action, even if such party is advised of or aware of the possibility of
such damages. The foregoing liability limitations shall apply to the maximum
extent allowed by applicable law. To the extent the foregoing liability limitations or
the warranty disclaimers of Clause 4 are not allowed by applicable law, then the
liability of Gudu Software, and the remedy of Licensee, shall be limited to the prompt:
(d) re-supply of any defective Product; or (e) refund of any license fees paid by
Licensee for such defective Product.
15. Ownership / Intellectual Property
This Agreement only confers the right to use the Product and does not convey
any rights of ownership in or to the Product. The Licensee acknowledges that the
Product and all intellectual property rights in relation to the Product are the
property of Gudu Software and Gudu Software is entitled to take whatever action it may
decide in order to protect its intellectual property rights in the Product.
16. Open Source Code
Gudu Software don't use any open source code in their products.
17. Publicity Rights
(a) The Licensee grants Gudu Software the right to include the Licensee as a customer
in Product promotional material.
(b) Licensee can deny Gudu Software this right by submitting a written request via
email to support@dpriver.com, requesting to be excluded from Product
promotional material. Confirmation of such denial (via reply email) must be
received prior to purchasing for this exclusion to be effective.
(c) Should the Licensee come to be or already be included in Product
promotional material, as a result of any prior purchases where the Licensee did
not request exclusion from Product promotional material, the Licensee can at any
point in time, submit a written request via email to support@dpriver.com to have
Gudu Software remove the Licensee's name from Product promotional material. Upon
receipt of such request, Gudu Software will remove any reference to the Licensee from
such promotional material within 30 days and make no further reference to the
Licensee.
18. No Assignment or Amendment
Licensee may not amend this Agreement without prior written consent of
Gudu Software. Licensee may assign this Agreement to succeeding parties in the case
of a merger, acquisition or change of control so long as in doing so, Gudu Software is
notified in writing within ninety (90) days of the closure of such transaction. If
Licensee merges into or with a direct competitor of Gudu Software, as determined in
Gudu Software's sole discretion, then this Agreement will automatically terminate as of
the effective date of such merger. Gudu Software may assign its rights and obligation
under this Agreement without consent of Licensee.
19. Tax
Payments made by the Licensee under this Agreement exclude any taxes or
duties payable in respect of the goods or services supplied in the jurisdiction
where the payment is made or received. To the extent that any such taxes or
duties are payable by Gudu Software, the Licensee must pay to Gudu Software the amount
of such taxes or duties in addition to the license fee under this Agreement unless
Licensee is exempt from paying such taxes or duties at the time such taxes or
duties are levied or assessed. Gudu Software will provide the Licensee with
documents requested by Licensee necessary to enable the Licensee to obtain a
tax or duty refund or credit.
20. Governing Law
This Agreement is governed by the laws of the State of California, USA,
regardless of conflict of law provisions, and the parties hereby irrevocably and
unconditionally submit to the exclusive jurisdiction of the courts in San Francisco,
California, USA.
21. Attorneys Fees
The prevailing party in any legal action or arbitration relating to this Agreement
will be entitled to recover its attorneys' fees and litigation costs and expenses
incurred in connection with such action or arbitration as part of the same
proceeding.
22. Counterparts/Faxed Signatures
This Agreement may be executed in any number of counterparts, each of which
will be an original and all of which will constitute together one and the same
document. Signatures transmitted by telecopier or electronically will be deemed
originals.
23. No Waiver
The failure of either party hereto to prosecute its rights with respect to a breach
hereunder will not constitute a waiver of the right to enforce its rights with respect
to the same or any other breach.
24. Notices
Gudu Software may give notice by means of a general notice on the Gudu Software website,
electronic mail to your e-mail address on record with Gudu Software, or by written
communication sent by first class mail or pre-paid post to your address on
record. Such notice will be deemed to have been given upon the expiration of 48
hours after mailing or posting (if sent by first class mail or pre-paid post) or 12
hours after sending (if sent by email). You may give notice to Gudu Software at any
time by any of the following: letter delivered by nationally recognized overnight
delivery service or first class postage prepaid mail to Gudu Software's addresses on its
website.
