TERMS AND CONDITIONS
This End User License Agreement (“Agreement”) is between the Chirayu
Software Solutions ("CSS")
and the licensee ("Licensee").
“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;
means this Agreement including any addenda, all Transaction Documents
(including pricing information), Documentation, and any other documents
provided by CSS setting out permitted uses of the Software;
“License Fees” means all non-refundable
fees payable by Licensee to CSS with respect to the granting of Software
“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;
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;
a license for the Software granted under this Agreement to the Licensee;
the non-refundable fees payable annually by Licensee to CSS for Support
the software maintenance and support services;
Services Term” means
each twelve (12) month period beginning on the date the Software is delivered
by CSS to Licensee (which may be accomplished by making the Software available
by electronic download) or the anniversary thereof.
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 CSS income;
“Territory” mean the Republic of India
means software products owned and licensed directly by third parties to the
includes: a) a written order schedule signed by both parties which references
this Agreement, b) a quotation issued by CSS and signed by the Licensee, c) an
invoice issued by CSS, d) a renewal notice issued by CSS or an Affiliate for
Support Services, or e) any other document that references this Agreement and
is agreed to by CSS in writing. If and to the extent of any
inconsistency between two or more Transaction Documents, 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 CSS. The source code of the Software is a trade secret of CSS and
is their confidential information.
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, CSS 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. CSS
reserves all rights not expressly granted to Licensee in a written document
signed by both parties.
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 CSS has been paid License Fees will apply.
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, 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
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.
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 CSS will solely own all
modified portions and Licensee will irrevocably assign to CSS 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 CSS to interface or interact with the Software, unless accomplished through the use of application program interfaces provided by CSS.
6. ORDERING SOFTWARE LICENSES
6.1 Direct Orders. If Licensee orders Software
directly from CSS, the Software must be identified on a Transaction Document
acceptable to CSS.
6.2 Risk of Loss and Shipping
Terms. The Software is deemed delivered on the
earlier of (a) when it is made available by CSS for electronic download, or (b)
when CSS 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 CSS to the shipping dock of the CSS shipping facility.
6.3 Invoicing and Payment. CSS 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 CSS by Licensee are
due and payable upon Licensee’s receipt of an invoice from CSS. Fees do not include Taxes which are the responsibility
of Licensee. If CSS is obligated to pay Taxes on behalf of Licensee, Licensee
will reimburse CSS in full promptly following receipt of CSS’s invoice. CSS
will issue a tax invoice where required by applicable law. All Fees and Taxes
due to CSS under this Agreement are payable in the currency specified in the
Transaction Document. All Fees and Taxes
due to CSS 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. CSS 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 CSS.
Tax. Licensee is responsible for
paying the full Fees to CSS without any setoff or deduction. Should CSS 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. CSS SUPPORT AND MAINTENANCE.
7.1 CSS Support and Maintenance
Program. All Support Software and Support Services
provided to Licensee are governed by this Agreement
7.2 Support Services Exclusions. CSS 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 CSS; (b) neglect, misuse, alteration, or modification, to the
Software other than by CSS; (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 CSS; or (e) failure of Licensee
to install any Support Software provided by CSS.
8. Limited Warranties:
8.1 Limited Warranty. CSS 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. CSS’s entire
liability, and Licensee's sole remedy, for each breach by CSS of the warranty
in: (i) clause (a) is limited to requiring CSS to
deliver a replacement copy of the Software to Licensee free of known viruses;
and (ii) clause (b) is limited to requiring CSS 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,
CSS will refund all License Fees attributable to the portion of the Software
giving rise to the breach; and (iii) clause (c) is for CSS 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 CSS
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 CSS 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. CSS 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, CSS 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) CSS’s liability for breach of any Implied Terms is limited, at CSS’s
option, to the resupply of the goods or services; and (b) CSS'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
ANY THING CONTAINED IN THIS AGREEMENT, CSS 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. CSS’S
AGGREGATE LIABILITY TO LICENSEE WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID
TO CSS 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 CSS
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.
10.1 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 CSS or destroy all copies of Software, Documentation, and CSS
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 CSS 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
Without limiting CSS’s rights under clause 120.1, CSS 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 CSS, including failure to
pay an invoice.
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. CSS 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 CSS and
Licensee will defend and indemnify CSS against any claims, damages, costs,
losses or expenses related to the development or use of the Licensee
11.4 Independent Contractors. CSS 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 CSS. 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 CSS 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, CSS may refer
to Licensee’s relationship with CSS in a public press release or marketing
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
CSS to the Licensee will be governed by a license agreement between the Third
Party Software owner and the Licensee. CSS
does not provide any warranties related to the Third Party Software. CSS 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 CSS issuing an invoice to Licensee after receiving such
purchase order from Licensee.
11.13 Transaction Documents and
Order of Priority.
CSS 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 CSS 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
CSS 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
hardware is identified on a Transaction Document, the sale and use of the
hardware will be governed by terms other than this Agreement. CSS disclaims all
warranties and liability with respect to the hardware.
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