[To be executed on stamp paper of adequate value]
END-USER LICENSE AGREEMENT
This end-user license agreement (“Agreement”) is made on [insert date] (“Effective Date”),
BY AND BETWEEN
VPHRASE ANALYTICS SOLUTIONS PRIVATE LIMITED, a company incorporated and duly registered under Companies Act, 2013 and having its corporate office at 301, T-Square, Saki Vihar Road, Andheri (E), Mumbai - 400072, Maharashtra, India (hereinafter referred to as “Licensor”, which expression shall, unless repugnant to the context or meaning thereof, be deemed to mean and include its successors and permitted assigns) of the FIRST PART; and
[LICENSEE NAME] a company incorporated and duly registered under Companies Act, 1956/2013 and having its registered office at [•] (hereinafter referred to as “Licensee”, which expression shall, unless repugnant to the context or meaning thereof, be deemed to mean and include its successors and permitted assigns) of the SECOND PART.
A. The Licensor is engaged, inter alia, in the business of providing information technology related services.
B. The Licensee is engaged, inter alia, in the business of [●].
C. Pursuant to the discussions had between the Parties, the Licensee is desirous of entering into an arrangement with the Licensor to avail access to the Software (hereinafter defined) and accordingly Parties are executing this Agreement to record the terms and conditions agreed in relation thereto.
IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS:
1.1. “Affiliate” means, in relation to: (a) a natural Person, the relatives of such natural Person and/or a Person controlled by such natural Person; and (b) a Person other than a natural Person: (i) any other Person controlled by such Person (directly or indirectly); (ii) any other Person controlling such Person (directly or indirectly); or (iii) any other Person controlled (directly or indirectly) by any other Person controlling such Person;
1.2. “Agreement” shall mean this end-user license agreement, together with the recitals, annexes, schedules and exhibits attached hereto and any amendments thereto;
1.3. “Authorized User” means those uniquely identified individuals who are authorized by the Licensee to access and use the Software. It is clarified that the licenses granted on an Authorized User basis may be reassigned between uniquely identified individuals over time, but may not be reassigned so frequently as to enable the sharing of a single license between multiple users.
1.4. “Confidential Information” means: (a) any object code or source code of the Software (which is solely the Licensor’s confidential information); (b) any information of a party that is disclosed in writing or orally and designated confidential at time of disclosure (and, for oral disclosures, summarized in writing within 30 (thirty) days of initial disclosure and delivered in written summary form to receiving party), or that, due to the nature of the information or circumstances of disclosure, receiving party should reasonably understand to be disclosing party’s confidential information; and (c) the terms of this Agreement and any amendment or attachment to any of these (which will be deemed Confidential Information of both parties);
1.5. “Documentation” shall mean any supporting product help and technical specifications documentation provided by the Licensor with the Software to the Licensee. It is clarified that the Documentation does not include white papers, community forums, training videos, tutorials, knowledge base articles or other similar resources which may be made available for convenience of the Licensee;
1.6. “Hardware(s)” shall mean internal online server of the Licensee either owned by the Licensee or licensed by the Licensee which are only for the use of the Licensee and its Authorized Users including but not limited to a hardware, which shall comprise of the personal computers, laptops, workstations, where the Software will be accessed and/or used.
1.7. “Intellectual Property Rights” shall mean all intellectual property or other proprietary rights worldwide, including patent, trademark, service mark, copyright, trade secret, know-how, moral right, and any other intellectual and intangible property rights, including all continuations, continuations in part, applications, renewals, and extensions of any of the foregoing, whether registered or unregistered;
1.8. “License Term” shall mean the Initial License Term and/or the Renewed Term, as the case may be;
1.9. “Licensee” shall mean to include the end-user of the Software including without limitation the Authorized User;
1.10. “Licensee Data” shall mean data generated by the Licensee or the Authorized User and used by or imported into the Software;
1.11. "Party" shall mean either the Licensor or the Licensee. "Parties" shall mean a collective reference to the Licensor and the Licensee;
1.12. “Person” shall mean any individual, firm, company, government, state or agency of a state, local or municipal authority or government body or any joint venture, a Hindu undivided family (whether or not registered), an estate, a trust, a limited or unlimited liability company, a company limited by guarantee, a body corporate, a limited liability partnership, association or partnership (whether or not having separate legal personality) or any other legal entity;
1.13. “Report” shall mean the personalised reports created by the Licensee using the Software.
1.14. “Software” shall mean the proprietary technology developed by the Licensor provided to the Licensee in connection with this Agreement (titled ‘Phrazor’), which can be hosted on online servers. The illustrative details of functionality of the Software is stated in the Annexure A. Unless otherwise noted, the Software and Documentation are referred to collectively herein as “Software”. All undefined names of Software products have the meanings given to them in the Documentation.
1.15. "Software Implementation" means placing the Software on a Hardware, computer's hard disk, CD-ROM or other secondary storage device.
2. SOFTWARE LICENSE
2.1. Subject to all of the terms and conditions of this Agreement, during the applicable License Term, the Licensor grants the Licensee a limited, worldwide, non-transferable, non-sublicensable, non-exclusive license to use the Software in accordance with: (a) the Documentation; (b) the terms stated in the Annexure B hereto. If clarified that the Licensee shall remain liable for all acts and omissions of any of the Authorized Users as if their acts or omissions were as that of the Licensee’s.
2.2. The Licensor hereby grants to the Licensee a to use the Software on one or multiple computer/Hardware in its possession, provided the Software is in use on only such Hardware authorized by the Licensor.
2.3. Subject to Clause 2.2, the Licensee provides a right to the Licensor for Software Implementation of the Software on the Hardware and the Licensor acknowledges and undertakes that the Software will be used only within environment of the ‘Local Area Network’ (LAN) operating at the business premise of the Licensee or the Site (as defined below), in accordance with the details provided in the Annexure B.
3. LICENSE FEE
The detailed structure of the fee for the Software is detailed in Annexure C of this Agreement, which is exclusive of all applicable taxes. Except as expressly set forth herein, all fees are non-refundable once paid.
4. DELIVERY AND SOFTWARE IMPLEMENTATION
4.1. Within [•] (insert words) from the Effective Date, subject to the support provided by the Licensee to the Licensor, the Licensor shall ensure the Software Implementation at the premises identified by the Licensee ("Licensee Premises"), more fully detailed in Annexure B.
4.2. Pursuant to the Software Implementation at the Licensee Premises, the Licensor shall successfully conduct acceptance testing procedure in presence of representatives of the Licensor, using a sample of data supplied by the Licensee (“Software Delivery”).
5. NEW LOCATION
The Licensee may not, at any time, without prior notice to, and consent of, the Licensor, transfer the Software to any location other than the Licensee Premise which is not owned or controlled by the Licensee. It is further clarified that any use of the Software by the Affiliates of the Licensee shall require a prior written consent of the Licensor and subject to discretion of the Licensor, the fee paid under this Agreement may be revised and agreed upon mutually by the Parties.
6. REPRESENTATIONS AND WARRANTIES
6.1. Each Party represents and warrants that:
(a) It has the power and requisite authority, permission, approval and sanction to enter into and to exercise its rights and to perform its obligations hereunder;
(b) It has taken all necessary action to authorize the execution of and the performance of its obligations hereunder;
(c) The obligations expressed to be assumed by it hereunder are legal, valid, binding and enforceable; and
(d) Neither execution nor performance of this Agreement will contravene any provision of any Applicable Laws; or any contract, agreement or document by which it is/may be bound.
7. MAINTENANCE, TECHNICAL SUPPORT, TRAINING AND MODIFICATIONS
7.1. Maintenance, Technical Support and Training
(a) Depending on the requirement received from the Licensee in writing, all the technical support, maintenance support and training shall be provided by the Licensor on Licensee Premise as well as remotely using remote access tools or conferencing tools. Any cost incurred in travel and lodging in relation to the technical support, maintenance support and training provided on Licensee Premise shall be reimbursed by the Licensee to the Licensor.
(b) Subject to payment of the fee in accordance with Clause 3 of this Agreement, the Licensee shall be entitled to email support for any technical or functional clarifications required after the Software Implementation, during the License Term. The initial response time for any clarifications sought shall be 2 (two) business days, which shall mean a day on which business is undertaken in India, between 10:00 am and 6:00 pm (Indian Standard Time). All clarifications can be sent to (email@example.com).
(c) The Licensor shall provide training for 1 (one) time to the Licensee’s personnel (as identified by the Licensee), which shall include only (a) training to assist with Software Implementation, deployment, and usage; and (b) training in use of the Software.
7.2. Modification / changes
The Licensee may issue a written change order to request changes in the Software within the scope of the Agreement. If the requested change in the Software, is acceptable to the Licensor at its discretion, the Licensor will inform the Licensee if the change sought by the Licensee will cause an increase in price (including without limitation as a result of effort and changes made, labor rate escalation, prices and availability, and foreign exchange exposure) or time required to perform the changes in the Software. The Licensor will not be obligated to proceed with a requested change until documented in a separate change order signed by authorized representatives of both the Parties. However, if the Licensor proceeds at the Licensee’s direction with the change prior to signing the change order then the Licensee must pay for the change as invoiced by the Licensor. For avoidance of doubt, any modifications or changes proposed to be made to the Software by the Licensee shall be made at a professional fee rate which shall not be less than the rates set out in Annexure D.
8. INTELLECTUAL PROPERTY AND OWNERSHIP
8.1. The Licensee acknowledges and agrees that:
(a) the copyright, patent, trade secret, and all other Intellectual Property Rights of whatever nature in the Software and Documentation (except the Report generated by the Licensee using the Licensee Data from the Software) are and shall remain the property of the Licensor.
(b) the Software and the authorship, systems, ideas, methods of operation, Documentation and other information contained in the Software are proprietary intellectual property and/or the valuable trade secrets of the Licensor and that the Licensor is protected by civil and criminal law, and by the law of copyright, trade secret, trademark and patent in India, other countries and international treaties. This Agreement does not grant the Licensee any rights to the intellectual property, including any trademarks or service marks of the Licensor. The Licensor owns and retains all right, title, and interest in and to the Software, including without limitation any error corrections, enhancements, updates or other modifications to the Software, whether made by the Licensor or any third party, and all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights therein. The Licensee’s possession, installation or use of the software does not transfer to the Licensee any title to the intellectual property in the Software, and the Licensee will not acquire any rights to the software except as expressly set forth in this Agreement. Except as stated herein, the Licensee further acknowledges and agrees that the Licensee is obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to the Licensee under this Agreement or otherwise. The Licensor reserves all rights not expressly granted to the Licensee in this Agreement.
9. COVENANTS AND LIMITATIONS OF LICENSEE
9.1. As a condition of the limited license granted to the Licensee hereunder, the Licensee shall not (and shall not allow any third party to):
(a) decompile, disassemble, or otherwise reverse engineer the Software or third party code in the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software or third party code in the Software by any means whatsoever;
(b) distribute, sell, sublicense, rent, lease or use the Software (or any portion thereof including the object codes and source codes, as applicable) for time sharing, hosting, service provider or like purposes;
(c) remove any product identification, proprietary, copyright trademark, service mark, or other notices contained in the Software;
(d) modify any part of the Software, create a derivative work of any part of the Software or incorporate the Software (including the object codes and source codes, as applicable) into or with other software, except to the extent expressly authorized in writing by the Licensor;
(e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software;
(f) utilize any equipment, device, software, or other means designed to circumvent or remove any form of license key or copy protection used by the Licensor in connection with the Software, or use the Software together with any authorization code, license key, serial number, or other copy protection device not supplied by the Licensor;
(g) use the Software to develop a product which is competitive with any product offerings of the Licensor;
(h) use unauthorized keycode(s) or distribute or publish keycode(s) (as related to accessing the Software for the License Term);
(i) enable access to the Software for a greater number of Authorized Users than the sum quantity of licenses purchased by the Licensee;
(j) reassign license rights between Authorized Users so frequently as to enable a single license to be shared between multiple users;
(k) assert, nor will the Licensee authorize, assist or encourage any third-party to assert, against the Licensor or any of its Affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Software obtained or used hereunder;
(l) use the Software to develop a product that converts any file format to an alternative report file format used by any general-purpose report writing, data analysis or report delivery product that is not the property of the Licensor.
(m) use the Software in hazardous environments requiring fail-safe performance where the failure of Software could lead directly or indirectly to death, personal injury, or severe property or environmental damage;
(n) give any competitor of the Licensor direct or indirect access to the Software;
(o) permit any third parties or non-licensed entities, including contractors, to use the Software;
(p) electronically transfer the Software from one computer to another over a network other than Licensee internal LAN network; or
(q) alter or remove any proprietary rights notices or legends on or in the Software.
9.2. Licensee agrees and acknowledges that:
(a) the Software will be used in accordance with the specifications provided by the Licensor;
(b) it shall be responsible for the generation of the Report and sending the Report to the end-user;
(c) the content to be provided for generating the Report shall be the responsibility of the Licensee; and
(d) the accuracy and correctness of the content to be used in the Software for the purpose of generation of the Report, shall be the responsibility of the Licensee.
Upon the Licensor’s written request, the Licensee shall certify in a signed writing that use of the Software is in full compliance with the terms of this Agreement and provide a current list of Authorized Users using or given access to use the Software. With reasonable prior notice, the Licensor may audit the Licensee’s use of the Software and compliance with this Agreement, software monitoring system and records, provided such audit is during regular business hours. If such inspections or audits disclose that the Licensee have accessed or permitted access to or use of the Software in a manner that is not permitted under this Agreement, then the Licensor may terminate this Agreement pursuant to Section 11 and the Licensee is liable for the reasonable costs of the audit in addition to any other fees, damages and penalties the Licensor may be entitled to under this Agreement and applicable law.
11. TERM AND TERMINATION
11.1. This Agreement is effective and operative from the Effective Date, and the effective term of the license shall for a period of [•] (in words) [years / months] from the date of Software Implementation (“Initial License Term”). Upon expiry of the Initial License Term, the Parties may mutually choose to extend the term of the license in writing (“Renewed Term”) unless terminated earlier by the Parties in manner stated in this Agreement.
11.2. Without prejudice to any other rights or remedies which it may have, either Party shall be entitled to terminate this Agreement forthwith by notice:
(A) if the other Party shall have committed a breach of this Agreement and either such breach is incapable of remedy or shall have continued unremedied for 90 (ninety) days after a notice specifying the breach and requiring the same to be remedied has been given to the defaulting Party; or
(B) if (save in relation to a re-organisation, re-construction or amalgamation not affecting the credit-worthiness of the other Party):
(i)an order is made or resolution is passed for the winding-up of the other Party or if a provisional liquidator is appointed in respect of the other Party; or
(ii)a receiver (which expression shall include administrative receiver) is appointed in respect of the other Party or all or any of its assets.
11.3. Notwithstanding anything to the contrary contained in this Agreement, the Licensor may terminate this Agreement for cause upon giving the Licensee 30 (seven) days' written notice.
11.4. the Licensee may terminate this Agreement at any time on giving the Licensor 30 (thirty) days' written notice, however, the Licensee shall not be entitled to any refund of the fee set out in Annexure C.
11.5. Consequences of Termination
(A) Following service of a notice pursuant to Clause 11.3 above, in relation to termination of this Agreement, but prior to the effective date of such termination, each Party shall continue to abide by the terms and conditions of this Agreement in effect at such time and comply fully with its obligations hereunder during any period between the date of service of a termination notice and the date of actual termination.
(B) Upon termination of this Agreement for whatsoever reason and in addition to termination obligations specified elsewhere in this Agreement, the Licensee shall ensure that all amount(s) payable for usage of the Software are paid to the Licensor.
(C) Termination shall be without prejudice to any rights or remedies either Party may have against the other in respect of any antecedent breach of the terms of this Agreement.
(D) Upon termination of this Agreement, the Licensee shall return to the Licensor or destroy the original and all copies of the Software including partial copies and modifications. The Licensor shall have a reasonable opportunity to conduct an inspection of the Licensee's place of business to assure compliance with this provision.
11.6. Survival: The following Clauses shall survive any expiration or termination of this Agreement: 3 (License Fee), 8 (Intellectual Property and Ownership), 11 (Term and Termination), 12 (Indemnity), 13 (Limitation of Liability), 15 (Confidentiality), 14 (Limited Warranty and Disclaimer) and 16 (Miscellaneous).
12.1. The Licensee hereby agrees to defend, indemnify and hold the Licensor harmless from and against all claims or demands made against the Licensor (and any related losses, expenses or attorneys’ fees) arising out of or relating to the Licensee’s breach of the terms of this Agreement, negligent use or willful misuse of or negligent conduct or willful misconduct regarding the use of the Software or derivatives, including but not limited to, any claims of personal injury, death, damage to property or violation of any laws or regulations.
12.2. The Licensor agrees to indemnify and hold harmless the Licensee, against any and all losses, liabilities, judgments, awards and costs (including legal fees and expenses) arising out of or related to any third party claim that the Licensee's use or possession of the Software or Documentation, or the license granted hereunder, infringes or violates the copyright, trade secret or other proprietary right of any third party. The Licensor shall defend and settle at its sole expense all suits or proceedings arising out of the foregoing, provided that the Licensee gives Licensor prompt notice of any such claim of which it learns.
13. LIMITATION OF LIABILITY
In no event shall either Party be liable for any special, incidental, punitive, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits or confidential or other information, for business interruption, for loss of privacy, for corruption, damage and loss of data or programs, for failure to meet any duty including any statutory duty, duty of good faith or duty of reasonable care, for negligence, for economic loss, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the Software, the provision of or failure to provide support or other services, information, software, and related content through the software or otherwise arising out of the use of the Software, or otherwise under or in connection with any provision of this Agreement, or arising out of any breach of contract or any tort (including negligence, misrepresentation, any strict liability obligation or duty), or any breach of statutory duty, or any breach of warranty of the Licensor. The Licensor’s entire liability and obligation to the Licensee shall not exceed the fees paid or owed by the Licensee to the Licensor under this Agreement during the 6 (six) months preceding the claim.
14. LIMITED WARRANTY AND DISCLAIMER
14.1. Limited warranty. The Licensor warrants to the Licensee that for a period of 30 (thirty) days from the date of Software Delivery (“Warranty Period”) the Software shall operate in substantial conformity with the Documentation. The Licensor does not warrant that the Licensee’s use of the Software will be uninterrupted or error-free or that any security mechanisms implemented by the Software will not have inherent limitations. The Licensor’s sole liability (and Licensee’s exclusive remedy) for any breach of this warranty shall be, in the Licensor’s sole discretion, to use commercially reasonable efforts to provide the Licensee with an error-correction or work-around which corrects the reported non-conformity. The Licensor shall have no obligation with respect to a warranty claim unless notified of such claim within the Warranty Period. For the avoidance of doubt, this warranty applies only to the initial Software Delivery under this Agreement and does not renew or reset with any Software updates or maintenance releases or the Renewed Term.
14.2. Exclusions. The limited warranty set out in Clause 14.1 above, shall not apply to the following:
(a) if the Software is used with Hardware or software not authorized in the Documentation or is not compatible with the Software;
(b) if any modifications are made to the Software by the Licensee or any third party;
(c) to defects in the Software due to accident, abuse or improper use by the Licensee;
(d) to any Software provided on a no charge;
(e) in case of any deficiencies and related infringement for which the Licensor expressly disclaims any warranty responsibility;
(f) malfunctions, defects, or failures resulting from misuse; abuse; accident; neglect; improper installation, operation or maintenance; theft; vandalism; acts of God; acts of terrorism; power failures or surges; casualty; alteration, non-permitted modification, or repairs by any party other than the Licensor; or any other third parties’ or the Licensee’s actions or causes beyond the Licensor’s reasonable control; or
(g) for any defect not made known by the Licensee to the Licensor within the Warranty Period.
14.3. Disclaimer. The Software is provided "as is" and the Licensor makes no representation and gives no warranty as to its use or performance. The Licensor makes no warranty, condition, representation, or term (express or implied, whether by statute, common law, custom, usage or otherwise) as to any matter including, without limitation, non-infringement of third-party rights, merchantability, satisfactory quality, integration, or fitness for a particular purpose. The Licensee shall assume all faults, and the entire risk as to performance and responsibility for selecting the Software to achieve the Licensee’s intended results, and for the installation of, use of, and results obtained from the software. without limiting the foregoing provisions, the Licensor makes no representation and gives no warranty that the Software will be error-free or free from interruptions or other failures or that the Software will meet any or all of the Licensee’s requirements whether or not disclosed to the Licensor.
14.4. The Licensee acknowledges, accepts and agrees that no Software is error-free and the Licensee is advised to back up the Computer with the frequency and reliability suitable for the Licensee.
15.1. Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party, provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software (including the Software), pricing, documentation or technical information provided by the Licensor (or its agents), performance information relating to the Software, and the terms and conditions of this Agreement shall be deemed Confidential Information without any marking or further designation.
15.2. The Licensee Data shall be deemed to be Licensee’s Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information to anyone other than its affiliates, employees and consultants (“Representatives”) who have a need to know and who agree in writing to keep the information confidential on terms no less restrictive than those contained in this Agreement. The Parties will ensure that their respective Representatives comply with this Agreement and will be responsible for any unauthorized use or disclosure of Confidential Information by such Representatives.
15.3. Exceptions: The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).
15.4. The Receiving Party acknowledges that disclosure of Confidential Information could cause substantial harm for which damages alone would not be a sufficient remedy, and therefore upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
15.5. Export Control laws: The Licensee agree that (a) all use, exports, and imports related to this Agreement will be in compliance with the export control laws and regulations and (b) it shall not allow any third party to export, re-export, or transfer any part of the Software. The foregoing obligations include but are not limited to the Licensee or a third party accessing, exporting, transferring, or importing any Licensee Data or the Software to: (i) to any country subject to export control embargo or economic sanctions implemented by any agency of the respective country or foreign governments; or (ii) otherwise in violation of any export or import laws, regulations or requirements of any such country or foreign agency or authority.
(a) Any notice and other communication provided for in this Agreement, including but not limited to a notice of waiver of any term, breach of any term of this Agreement and termination of this Agreement, shall be in writing and shall be first transmitted by facsimile/electronic transmission and then confirmed by internationally recognised courier service or registered mail, in the manner as elected by the Party giving such notice to the following addresses:
(b) In the case of notices to the Licensor:
Address : 301, T-Square, Saki Vihar Road, Andheri (E), Mumbai - 400072, Maharashtra, India
Attention : Mr. Neerav Parekh
Telephone : +91 99208 23666
Facsimile : firstname.lastname@example.org
Email : email@example.com
(c) In case of notices to the Licensee:
Address : [●]
Attention : [●]
Telephone : [●]
Facsimile : [●]
Email : [●]
(d) All notices shall be deemed to have been validly given on (i) the business day immediately after the date of transmission with confirmed answer back, if transmitted by facsimile/electronic transmission, or (ii) the business day immediately after date of delivery, if transmitted by courier or registered airmail.
(e) Any Party may, from time to time, change its address or representative for receipt of notices provided for in this Agreement by giving to the other Parties not less than prior written notice of 10 (ten) business days.
16.2. Reservation of rights. Failure by either Party to insist upon strict performance of any of the provisions contained in this Agreement shall in no way constitute a waiver of its rights as set forth in this Agreement, at law or in equity, or a waiver of any other provisions or subsequent default by the other Party in the performance of or compliance with any of the terms and conditions set forth in this Agreement. No forbearance, indulgence or relaxation or inaction by a Party at any time to require performance of any of the provisions of this Agreement shall in any way affect, diminish or prejudice the right of such Party to require performance of that provision. Any waiver or acquiescence by a Party of any breach of any of the provisions of this Agreement shall not be construed as a waiver or acquiescence of any right under or arising out of this Agreement or of the subsequent breach, or acquiescence to or recognition of rights other than as expressly stipulated in this Agreement.
16.3. Severability. If any part or all of any provision of this Agreement is illegal or unenforceable, it may be severed from this Agreement and the remaining provisions of this Agreement shall continue to remain in force. Any invalid or unenforceable provision of this Agreement shall be replaced with a provision that is valid and enforceable and most nearly reflects the original intent of the unenforceable provision.
16.4. Entirety. This Agreement (including mutually agreed exhibits or attachments) constitutes the entire agreement between the Parties with respect to the subject matter hereof to the exclusion of all other understandings and assurances, relating to such subject matter either written or oral and supersedes all prior agreements and understandings between the parties relating to the subject matter hereof.
16.5. Amendment. No amendment or modification of any provision of this Agreement shall be effective unless the same shall be in writing and signed by each of the Parties hereto.
16.6. Assignment and Sub-contracting. No Party shall be entitled to assign or sub-contract its rights and/or obligations under this Agreement without the prior written consent of the other Party provided that the Licensor shall be entitled to assign any or all of its rights and obligations under this Agreement to any of its Affiliates (current or future) without the prior consent of the Licensee.
16.7. Counterparts. This Agreement may be executed in any number of counterparts and all of which taken together shall constitute one and the same instrument. The Parties may enter into this Agreement by signing any such counterpart. Delivery of an executed counterpart signature page of this Agreement by email (PDF) shall be as effective as delivery of a manually executed counterpart of this Agreement.
16.8. Force Majeure
(a) “Force Majeure Event” shall mean any of the following events or combination of such events or circumstances as are beyond the control of a Party and which cannot: (i) by the exercise of reasonable diligence; or (ii) despite the adoption of reasonable precautions and / or alternative measures, be prevented, or caused to be prevented, or which materially and adversely affects the party’s ability to perform its obligations under this Agreement, including: (a) acts of God, comprising fire, drought, flood, earthquake, pandemic (including without limitation Covid-19), epidemics and other natural disasters; (b) explosions or accidents, and terrorist attacks; (c) strikes, labour unrest or lock-outs; (e) any order, directive, regulation or law imposing any quarantine, social distancing and restrictions on the opening and functioning of any businesses, Government offices or any other body, regulatory authority or bank in India; (d) any event or circumstance analogous to the foregoing; and/or (e) other circumstances beyond the control of either Party.
(b) In the event that either party is unable to perform its obligations under this Agreement, or if the performance of its obligations under this Agreement would be hindered or delayed by, the occurrence of a Force Majeure Event or the subsistence of a Force Majeure Event that has occurred prior to or during the License Term, then the party so affected in the discharge of its obligation shall promptly, but not later than 5 (five) days give written notice of such Force Majeure Event to the other party. The affected party shall make every reasonable effort to remove or remedy the cause of such Force Majeure Event or mitigate its effect as quickly as possible.
(c) In the circumstances set out in sub-clause (b) above and subject to the satisfaction of its terms (and subject also to sub-clause (c) below):
(i) the obligation of the Party affected by such Force Majeure Event shall be suspended for the period during which such Force Majeure Event subsists (subject to sub-paragraphs (ii) and (iii) below);
(ii) the Party affected by such Force Majeure Event shall have no liability under this Agreement of any nature relating to the suspension of performance of the obligation for such period to the other Party and any suspension performance by either Party hereto shall not give rise to any claim for damages or loss of anticipated profits to the extent such delay or failure is caused by a Force Majeure Event, in all such cases (subject to sub-paragraph (iii) below); and
(iii) nothing in this Clause 16.8 shall excuse the payment of any money due or which becomes due under this Agreement, where the obligations to pay arose before the occurrence of the Force Majeure Event.
(d) If such occurrence of a Force Majeure Event results in the suspension of all or part of this Agreement or the obligations or performance by any Party for a continuous period of more than 30 (thirty) days (having followed the procedure and satisfied the provisions of Clause 16.8(b) above), the Parties shall meet and determine the measures to be taken, including termination of the Agreement.
16.9. Relationship. Nothing contained in this Agreement shall be construed a joint venture, partnership or agency between the Parties. The relationship between the Parties shall be on a principal to principal basis. The Licensee shall not be entitled to, by act, word, deed or otherwise, make any statement on behalf of the Licensor or in any manner bind the Licensor.
16.10. Dispute Resolution
(A) If any dispute arises between the Parties during the subsistence of this Agreement or thereafter, in connection with the validity, interpretation, implementation or alleged material breach of any provision of this Agreement or regarding a question, including the questions as to whether the termination of this Agreement has been legitimate, the Parties shall endeavor to settle such dispute amicably.
(B) In the case of failure by the Parties to resolve the dispute in the manner set out above within 30 (thirty) days from the date when the dispute arose, the dispute shall be referred to a sole arbitrator, appointed jointly by the Parties. If the Parties fail to appoint a sole arbitrator mutually within 15 (fifteen) days of the dispute, an arbitral panel consisting of three arbitrators shall be appointed, with the Parties nominating one arbitrator each and the arbitrators so appointed nominating the third presiding arbitrator. The seat of arbitration shall be Mumbai, India. The arbitration proceedings shall be governed by the Arbitration and Conciliation Act, 1996 and the rules framed there under. The language of arbitration shall be English.
(C) The arbitrator's award shall be substantiated in writing and the Parties shall submit to the arbitrator's/arbitral panel's award which shall be enforceable in any competent court of law.
(D) The provisions of this Clause 16.10 shall survive termination of this Agreement.
16.11. Governing law and jurisdiction. The provisions of this Agreement shall, in all respects, be governed by, and construed in accordance with the laws of India. Subject to Clause 16.10 above the courts at Mumbai, India shall have exclusive supervisory jurisdiction to settle any claim or matter arising under this Agreement.
16.12. Costs. Save as otherwise provided in this Agreement, each Party shall bear its own costs (including taxes) and expenses incurred in connection with the execution of this Agreement and all transactions herein envisaged. The Stamp duty payable on this Agreement shall be borne by the Licensee.
16.13. Specific performance. In the event that the Licensee commits a default of the terms of this Agreement then, the Licensor shall be entitled to specific performance, as may be permitted under Applicable Laws, in addition to its rights and remedies under this Agreement.
IN WITNESS WHEREOF each Party has executed this Agreement, or caused this Agreement to be executed by its duly authorized representatives.
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ADDITIONAL TERMS OF LICENSE
1. User-Based License: If the license to the Software is designated as user-based, the total count of Authorized Users enabled to use such Software must not exceed the number of licenses purchased by the Licensee or access received from the Licensor.
2. On Premise License:
(a) The license granted under this Agreement is shall be limited to such an extent that the license granted to use the Software shall be limited to number of Authorized Users as set out below:
i. Software License: [•] (in words)
ii. Number of Authorized Users permitted: [•] (in words)
(b) It is clarified that the Software is accessed by the Authorized Users across multiple computers/systems, the number of System that can access the Software at one time shall not exceed the number of Authorized Users permitted to access the Software.
3. Details of the Licensee Premises for Software Implementation: [Address of the premise where the implementation is to be done to be inserted here]
1. One-time set-up fee:
(a) Licensee shall be entitled to pay a one-time set-up fee amounting to: INR [•] (Rupees in words)
2. License fee:
(a) Annual License fee payable by the Licensee shall amount to INR [•] (Rupees in words)
3. Maintenance and support fee:
(a) Licensee shall pay a Maintenance fee of INR [•] (Rupees in words), for each anniversary of the License Term.
4. The License Fee shall include the following:
(a) “Per Use Case” – The Software deployed in the premise of the Licensee for generation of Reports, in accordance with the instructions and the details provided by the Licensee in the purchase order or any such medium, as communicated by the Parties. Licensee Fee shall be subject to change, in case of any material change is made in the Per Use Case scenario.
(b) Number of Reports Generated – The Licensee shall be permitted to generate [•] Reports for Per Use Case.
(c) The nature and the number of Reports generated under Per Use Case, shall be subject to change, in the event, Licensee changes the material aspect of the Per Use Case. The License Fee may vary for each Per Use Case.
5. Subject to Clause 7.4, any change proposed by the Licensee to the Software may lead to revision of the Licensee fee or one-time cost.
6. Payment terms and conditions:
(a) The Licensee shall make the payment towards the invoice raised by Licensor within 15 (fifteen) days from the date of receipt of invoice.
(b) All the payment made toward the Licensee Fee and the Maintenance fee shall be made in Advance.
(c) Software License Fees do not include any fee for support, installation or training.
(d) The license fee payable under this Agreement towards procuring the license of the Software shall not include any support and maintenance provided to the Licensee under this Agreement and shall be charged separately.
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