TERMS AND CONDITIONS
This End User License Agreement (“Agreement”) is between the Chirayusoft Limited ("CSL") and the licensee ("Licensee").
1.0 DEFINITIONS
“Claim” means claims, suits, actions or proceedings brought against Licensee in a court of competent jurisdiction in a Territory by a third party which allege an infringement of the third party’s patent, copyright, or trade secret rights existing under the laws of the Territory;
“Confidential Information” means information, whether or not in physical form, all oral communications, documents and other information, disclosed by a party to the other which: (a) is by its nature or circumstances surrounding its disclosure is, or could reasonably be expected to be regarded as, confidential to the disclosing Party; (b) is marked or otherwise designated “confidential” by the disclosing Party; or (c) the disclosing Party informs the receiving Party is confidential or a trade secret;
“Fees” means Licensee Fees and/or Maintenance Fees, as applicable;
“License Documents” means this Agreement including any addenda, all Transaction Documents (including pricing information), Documentation, and any other documents provided by CSL setting out permitted uses of the Software;
“License Fees” means all non-refundable fees payable by Licensee to CSL with respect to the granting of Software Licenses;
“License Model” means the description of the conditions, limitations and restrictions associated with the Software License which govern the use of the Software, as set out in this Agreement;
“Physical Media” means the physical media or hardware containing or enabling Software;
“Software” means the software products, Documentation, and Support Software licensed to Licensee under this Agreement, including all copies made by Licensee and may, where the meaning so implies, refer to all of the Software or portions thereof;
“Software License” means a license for the Software granted under this Agreement to the Licensee;
“Maintenance Fees” means the non-refundable fees payable annually by Licensee to CSL for Support Services;
“Support Services” means the software maintenance and support services;
“Support Services Term” means each twelve (12) month period beginning on the date the Software is delivered by CSL to Licensee (which may be accomplished by making the Software available by electronic download) or the anniversary thereof.
“Support Software” means all maintenance and support software, updates, upgrades, patches, fixes, modifications, ported versions, or new versions of the Software provided to Licensee as part of Support Services, together with all related Documentation provided to Licensee pursuant to such program;
“Taxes” means the sales, use, consumption, goods and services, and value-added taxes imposed by the appropriate governments arising out of granting of licenses and delivery of Software or the delivery of Support Services, under this Agreement, except taxes imposed on CSL income;
“Territory” mean the Republic of India
“Third Party Software” means software products owned and licensed directly by third parties to the Licensee;
“Transaction Document” includes: a) a written order schedule signed by both parties which references this Agreement, b) a quotation issued by CSL and signed by the Licensee, c) an invoice issued by CSL, d) a renewal notice issued by CSL or an Affiliate for Support Services, or e) any other document that references this Agreement and is agreed to by CSL in writing. the priority of the Transaction Documents will be interpreted in the order listed above. All Transaction Documents are governed by this Agreement.
2. OWNERSHIP OF THE SOFTWARE:
2.1 Ownership. None of the Software is being sold. All ownership, intellectual property, and other rights and interests in the Software remain solely with CSL. The source code of the Software is a trade secret of CSL and is their confidential information.
3. LICENSE GRANT:
3.1 Grant of License. Except as otherwise stated in the License Documents and subject to Licensee’s payment of the License Fees and Taxes in full, CSL grants to Licensee a non-transferable (save as provided herein), worldwide, nonexclusive, perpetual (unless stated to be a time limited term), internal business use license (unless otherwise stated in the License Model Schedule) to download, install and execute the Software identified in the applicable Transaction Document in object code only, subject to the restrictions, quantities, conditions, and limitations stated in the License Documents. CSL reserves all rights not expressly granted to Licensee in a written document signed by both parties. CSL may facilitate in providing you the server, whereby your data/content of the Software can be stored or saved, however CSL shall in no way be responsible or liable for any of your content and/or data saved in the server. CSL reserve the right to stop providing the service of server to you at any time by giving the notice of fifteen (15) days to you.
3.2 Applicable License Models. The License Model and any restrictions for the Software will be stated in the Transaction Document. If no License Model or restrictions are specified in the Transaction Document, the License Model (and any capacities) for which CSL has been paid License Fees will apply.
5. RESTRICTIONS
5.1 General Restrictions. Except as provided in the License Documents, Licensee will not and will not permit any other party to: (a) assign, transfer, give, distribute, reproduce, transmit, sell,LICENSE GRANT lease, license, sublicense, publicly display or perform, redistribute or encumber the Software by any means to any party; (b) rent, loan or use the Software for service bureau or time-sharing purposes, or permit other individuals or entities to create Internet “links” to the Software or “frame” or “mirror” the Software on any other server or wireless or Internet-based device, or in any other way allow third parties to access, use, and/or exploit the Software; (c) use the Software, in whole or in part, to create a competitive offering; (d) charge a fee to any party for access to or use of the Software; (e) use the Software in a manner inconsistent with the License Documents.
5.2 Further Restrictions. Licensee will not disclose results of any benchmark or other performance, evaluation, or test run on or related to the Software. Licensee acknowledges that the Software is not fault-tolerant and not designed, manufactured, or intended for use or resale as online control equipment in hazardous environments requiring fail-safe performance and consequently will not use the Software for any application in which failure could cause personal injury or death. Except as expressly permitted under applicable law, Licensee will not modify, adapt, translate, reverse engineer, decompile, disassemble, decrypt, port, emulate the functionality, reverse compile, reverse assemble, or otherwise reduce or attempt to discover any source code or underlying structures, ideas, or algorithms of the Software or any confidential information or trade secret.
5.3 Derivative Works / Improvements. Licensee is prohibited from using the Software to create any change, translation, adaptation, arrangement, addition, modification, extension, upgrade, update, improvement, (including patentable improvements), new version, or other derivative work of or to the Software. Notwithstanding the foregoing, if any of the Software is provided to the Licensee in source code format (or any other format that can be modified), the Licensee may modify such portion of the Software for the sole purpose of using the Software in accordance with this Agreement and CSL will solely own all modified portions and Licensee will irrevocably assign to CSL in perpetuity all worldwide intellectual property and any other proprietary rights in and to any modifications of the Software.
5.4 Interfacing and Interactive Software. Licensee may not permit any software products not licensed by CSL to interface or interact with the Software, unless accomplished through the use of application program interfaces provided by CSL.
5.6 Data storage: You are responsible for your content/data in the software and/or server. You will ensure that your content/data will not violate any of the policies of any applicable law. Except as otherwise provided in this Agreement, CSL obtain no rights under this Agreement from you to your content and/or data. You consent to the use of your content/data by CSL, but only as necessary to provide the Services to you under this Agreement. You shall be solely responsible for any content and/or data saved or deleted by you or on your behalf form the server. CSL shall not be responsible or liable for any content/data saved or deleted by you or on your behalf by any third party on the Server.
6. ORDERING SOFTWARE LICENSES
6.1 Direct Orders. If Licensee orders Software directly from CSL, the Software must be identified on a Transaction Document acceptable to CSL.
6.2 Risk of Loss and Shipping Terms. The Software is deemed delivered on the earlier of (a) when it is made available by CSL for electronic download, or (b) when CSL delivers the Software on Physical Media. Title to the Physical Media and all risk of loss for the Physical Media will pass to Licensee when delivered by CSL to the shipping dock of the CSL shipping facility.
6.3 Invoicing and Payment. CSL may invoice Licensee in advance for Fees and Taxes and annually in advance for the applicable Support Services Term. All Fees and Taxes due to CSL by Licensee are due and payable upon Licensee’s receipt of an invoice from CSL. Fees do not include Taxes which are the responsibility of Licensee. If CSL is obligated to pay Taxes on behalf of Licensee, Licensee will reimburse CSL in full promptly following receipt of CSL’s invoice. CSL will issue a tax invoice where required by applicable law. All Fees and Taxes due to CSL under this Agreement are payable in the currency specified in the Transaction Document. All Fees and Taxes due to CSL which are not paid in full within 10 days following its due date will bear interest at a rate of 1.5% per month (18% per annum) or the maximum amount allowed by law, if less, on the unpaid portion until fully paid.
6.4 Over Usage. CSL may invoice Licensee for Fees and Taxes payable by Licensee due to use of or authorization to access the Software in excess of the number or type of Software Licenses granted by CSL.
6.5 Withholding Tax. Licensee is responsible for paying the full Fees to CSL without any setoff or deduction. Should CSL or Licensee be obligated by law to deduct and withhold any amounts ("Withholding Tax") from any payment or payments otherwise due and payable to the other party to this Agreement and remit such Withholding Tax to any government, government department, body, or agency ("Government"), such remitting party may do so and shall be deemed to have paid to the other party to this Agreement, for all purposes associated with this Agreement, each such payment made or remitted to such Government. Each remitting party shall provide sufficient documentation to the other party to demonstrate proof of payment of such Withholding Tax.
7. CSL SUPPORT AND MAINTENANCE.
7.1 CSL Support and Maintenance Program. All Support Software and Support Services provided to Licensee are governed by this Agreement
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7.2 Support Services Exclusions. CSL shall have no responsibility to provide Support Services to Licensee with respect to any problem with the Software caused by: (a) any software, device, or other product not supplied by CSL; (b) neglect, misuse, alteration, or modification, to the Software other than by CSL; (c) use of the Software for a purpose other than the purpose for which it was designed; (d) use of the Software on a computer platform other than the platform authorized by CSL; or (e) failure of Licensee to install any Support Software provided by CSL.
8. Limited Warranties:
8.1 Limited Warranty. CSL warrants to Licensee that: (a) Software will be free of all known viruses at the time of first delivery; and (b) Software will perform substantially in accordance with its accompanying Documentation for 60 days from the date of first delivery; and (c) Support Services will be delivered with reasonable skill and care. CSL’s entire liability, and Licensee's sole remedy, for each breach by CSL of the warranty in: (i) clause (a) is limited to requiring CSL to deliver a replacement copy of the Software to Licensee free of known viruses; and (ii) clause (b) is limited to requiring CSL to correct or work around the portion of the Software giving rise to such breach within a commercially reasonable time, failing which, in the case of the initially-delivered Software, CSL will refund all License Fees attributable to the portion of the Software giving rise to the breach; and (iii) clause (c) is for CSL to re-perform the applicable Support Services.
8.2 Warranty Exclusions. The warranties do not apply to any breach caused by: (a) any change to the Software, except where the changes were made by CSL through Support Software; (b) Licensee's failure to provide a suitable installation or operating environment for the Software; (c) use of the Software on or caused by software, firmware, computer systems, data, technology or a hardware platform not approved by CSL in writing; (d) any telecommunications medium used by Licensee; (e) failure of Licensee or user to comply with the Documentation; or (f) failure of Licensee to report a warranty claim within the warranty period. CSL does not warrant that the Software is error-free or will operate without interruption.
8.3. WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN THIS SECTION, CSL MAKE NO REPRESENTATIONS AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW DISCLAIM ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES AND CONDITIONS, WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THE ADEQUACY OF THE SOFTWARE TO PRODUCE A PARTICULAR RESULT.
8.4 Inability to Exclude Warranties. Nothing in the Agreement purports to exclude, restrict or modify, any condition, warranty or guarantee implied by applicable law ("Implied Terms") where to do so would have the effect of rendering the Agreement void or otherwise unenforceable. To the maximum extent permitted by applicable law, (a) CSL’s liability for breach of any Implied Terms is limited, at CSL’s option, to the resupply of the goods or services; and (b) CSL's total liability to Licensee for breach of all such Implied Terms is limited to the amount stated in the Limitation of Liability section.
9. LIMITATION OF LIABILITY
9.1 NOTWITHSTANDING ANY THING CONTAINED IN THIS AGREEMENT, CSL IS NOT LIABLE TO LICENSEE OR TO ANY OTHER PARTY FOR(A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY, OR PUNITIVE DAMAGES; OR (B) ANY LOST SALES, LOST REVENUE, LOST PROFITS, LOST OR CORRUPTED DATA, OR REPROCUREMENT AMOUNT.
9.2 LIMITATION OF LIABILITY. CSL’S AGGREGATE LIABILITY TO LICENSEE WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO CSL UNDER THE RELEVANT TRANSACTION DOCUMENT. THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THIS SECTION.
9.3 DISCLAIMER. THE LIMITATIONS IN THIS SECTION APPLY: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, EQUITY, AT LAW, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF CSL IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF LICENSEE’S REMEDIES FAIL IN THEIR ESSENTIAL PURPOSE.
10. TERMINATION
10.1 Termination for Default. Either party may terminate this Agreement if the other party: (a) becomes insolvent; or (b) has a receiver or receiver manager appointed with respect to it or any of its assets. Without prejudice to each right or remedy of a non-breaching party, either party may terminate this Agreement for material breach by written notice, effective 10 days after notice unless the other party first cures the breach.
10.2 Effect of Termination or Expiration. Upon any termination of this Agreement, or license granted pursuant to this Agreement, or upon expiration of a term license: (a) all Software Licenses will immediately terminate; (b) Licensee will immediately cease all use of the Software; and (c) Licensee must either deliver to CSL or destroy all copies of Software, Documentation, and CSL confidential information in Licensee’s possession or control. Within 15 days after termination, an authorized representative of Licensee must certify in writing that all copies have been delivered to CSL or destroyed. Any terms in this Agreement which by their nature extend beyond termination or expiration of this Agreement will remain in effect until fulfilled.
10.3 Termination or suspension of Support Services. Without limiting CSL’s rights under clause 120.1, CSL may, in its sole discretion, terminate or suspend Support Services if Licensee fails to remedy a material breach within thirty (30) days of notice by CSL, including failure to pay an invoice.
11. MISCELLANEOUS
11.1 Confidentiality. Each party (a “Disclosing Party”) may disclose to the other party (a “Receiving Party”) any Confidential Information. Each party agrees, for the period of this Agreement and for three (3) years after such period, to hold the other party’s Confidential Information in strict confidence, not to disclose such Confidential Information to third parties (other than to affiliates and to professional advisers who are bound by appropriate obligations of confidentiality) unless authorized to do so by the Disclosing Party, and not to use such Confidential Information for any purpose except as expressly permitted hereunder. Each party agrees to take reasonable steps to protect the other party’s Confidential Information to ensure that such Confidential Information is not disclosed, distributed or used in violation of the provisions of this section. The foregoing prohibition on disclosure of Confidential Information shall not apply to any information that: (a) is or becomes a part of the public domain through no act or omission of the Receiving Party; (b) was in the Receiving Party’s lawful possession without confidentiality obligation prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; or (c) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; or (d) is independently developed by the Receiving Party by employees or agents without access to the Disclosing Party’s Confidential Information (e) is required to be disclosed by the Receiving Party as a matter of law or by order of a court or by a regulatory body, provided that the Receiving Party promptly notifies the Disclosing Party (where lawfully permitted to do so) so that Disclosing Party may intervene to contest such disclosure requirement and/or seek an appropriate protective order or waive compliance with this section. .
11.2 Automated Verification. The Software may contain or require a license key to prevent unauthorized installation or to enforce limits of the Software License, and may contain devices or functionality to monitor Licensee’s compliance with this Agreement.
11.3 Developer Tools. CSL is not responsible or liable for Licensee’s development or use of additional software code or software products (“Licensee Software”) using software developer tools licensed by CSL and Licensee will defend and indemnify CSL against any claims, damages, costs, losses or expenses related to the development or use of the Licensee Software.
11.4 Data Privacy: CSL will not access or use Your Content except as necessary to maintain or provide the Services, or as necessary to comply with the law or a binding order of a governmental body. We will not disclose Your Content to any government or third party; except in each case as necessary to comply with the law or a binding order of a governmental body. Unless it would violate the law or a binding order of a governmental body, we will give you notice of any legal requirement or order. CSL will only use your Account Information in accordance with the Privacy Notice, and you consent to such usage. The Privacy Notice does not apply to Your Content. We may provide your content to the regulatory authority as may be required by them.
11.4 Independent Contractors. CSL and Licensee are independent contractors. Neither party has any authority to bind the other in any manner.
11.5 Waiver, Amendment, Assignment. Any amendment of this Agreement must be in writing and signed by both parties. Licensee may not assign, transfer, or sublicense any portion of its interests, rights, or obligations under this Agreement by written agreement, merger, consolidation, change of control, operation of law, or otherwise, without the prior written consent of CSL. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by a written waiver by a duly authorized representative. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement. An assignment in contravention of this subsection will be null and void. Except to the extent identified in this subsection, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
11.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Republic of India excluding its conflicts or choice of law rules. Except for injunctive relief required by CSL to protect its intellectual property, any dispute or difference whatsoever arising between the parties out of or relating to the construction, meaning, scope, operation or effect of this Agreement or the validity or the breach thereof (“Dispute”), the parties to this Agreement shall attempt in the first instance to resolve such Dispute through friendly consultation or mediation. If the Dispute cannot be resolved in the above manner within thirty (30) days after one party has issued a written notice to the other party to commence consultations, the Courts in Vadodara shall have exclusive jurisdiction to hear and decide the Dispute.
11.7 Force Majeure. Except for payment and confidentiality obligations, or protection of intellectual property, neither party is responsible for any delay or failure in performance of this Agreement to the extent due to causes beyond its reasonable control.
11.8 Severability. If any provision of this Agreement is deemed contrary to applicable law or unenforceable by a court of competent jurisdiction, the provision will be severed from this Agreement and all remaining provisions will continue in full force.
11.9 Press Release. With Licensee’s prior approval, CSL may refer to Licensee’s relationship with CSL in a public press release or marketing materials.
11.10 Attribution Notices. Licensee will not remove, modify, obscure, resize, or relocate any ownership, attribution, or branding notices from the Software.
11.11 Resale of Third Party Software. The use of any Third Party Software resold by CSL to the Licensee will be governed by a license agreement between the Third Party Software owner and the Licensee. CSL does not provide any warranties related to the Third Party Software. CSL has no liability or obligation to the Licensee related to the Third Party Software.
11.12 Entire License Agreement. The License Documents set forth the entire agreement between the parties with respect to this subject matter, and supersede all other related oral and written agreements and communications between the parties. Neither party has relied upon such other agreements or communications. Any purchase order terms which purport to amend or modify terms of the License Documents, or which conflict with the License Documents are void and shall have no legal effect notwithstanding the fact the purchase order terms being later in time or CSL issuing an invoice to Licensee after receiving such purchase order from Licensee.
11.13 Transaction Documents and Order of Priority. CSL and Licensee may agree in a Transaction Document to special provisions which amend or vary a party’s rights or obligations under this Agreement (including any addenda), the License Model Schedule, Documentation, or any other documents provided by CSL setting out permitted uses of the Software. In the event of an inconsistency between: (i) special provisions agreed in a Transaction Document, (ii) this Agreement (including any addenda), (iii) the License Model Schedule, Documentation, or any other documents provided by CSL setting out permitted uses of the Software, the documents shall be interpreted in that order to the extent of the inconsistency.
11.14 Third Party Rights. This Agreement does not confer a benefit on, and is not enforceable by, any person or entity who is not a party to this Agreement.
11.15 Legal Review and Interpretation. Both parties have had an opportunity for legal review of the License Documents. The parties agree that the License Documents result from negotiation between the parties. The License Documents will not be construed in favor of or against either party by reason of authorship. The headings used in this Agreement are for convenience only.
11.16 Notices. Any notice under this Agreement that must be given by a party in writing is deemed effective when sent either: (a) via certified or registered mail, postage prepaid, or (b) via express mail or nationally recognized courier service to the other party’s address specified in this Agreement.
11.17 Hardware. IF HARDWARE IS IDENTIFIED ON A TRANSACTION DOCUMENT, THE SALE AND USE OF THE HARDWARE WILL BE GOVERNED BY TERMS OTHER THAN THIS AGREEMENT. CSL DISCLAIMS ALL WARRANTIES AND LIABILITY WITH RESPECT TO THE HARDWARE.
11.18 Governing Language. This Agreement shall be prepared and interpreted in the English language. Any translation of this Agreement into another language is for the purpose of convenience only. Any inconsistency arising due to translation into another language or a difference of interpretation between two or more languages, the English language clause will prevail over any other interpretation.
11.19 This Agreement takes effect when you click an “I Accept” button or check box presented with these terms or, if earlier, when you use any of the Services (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity.
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