The Software License and Services Agreement ("Agreement") is between BeyondSquare Solutions Private Limited, a private company incorporated in India, having its registered office located at #427, 5th Cross, JP Nagar 3rd Phase Bangalore - 560 078, Karnataka, India ("Licensor") and YOU the licensor
By agreeing to the Terms and Conditions, we agree to become parties to this Agreement and to be bound by the terms and conditions set forth below. These terms shall apply to any Order Schedule (as defined below) entered into between the parties.
1.1. "Software" means the software program(s) (any related documentation, instructions, and reference materials provided to Licensee, as well as Updates (as defined below)) listed in the initial ordering document(s) and any subsequent ordering document(s) between the parties.
1.2."Consulting Services" means any professional consulting services Licensor agrees to perform for Licensee as may be detailed in and performed in accordance with a Consulting Order Schedule. Unless specified otherwise, any Consulting Services exclude any Software Maintenance Services.
1.3."Updates" means maintenance releases, additions, and modifications, and new versions of the Software incorporating such additions and modifications which are made available to Licensee as part of maintenance services.
Updates do not include maintenance releases, additions, or modifications that Licensor considers to be a separate product or for which Licensor charges its customers extra or separately.
2.1. Software License. Licensor hereby grants Licensee a nonexclusive, nontransferable license to use the Software in accordance with the scope of the license defined herein and in the applicable Order Schedule. Licensee is responsible for supplying, at its own cost and expense, any hardware or applications required to use the Software. Licensee may make a reasonable number of archival and back-up copies of the Software for internal use.
2.2. Limitations on License. Licensee agrees that it will not (a) modify, disassemble, reverse engineer, or decompile the Software, or attempt to do any of the foregoing (b) attempt to access or use portions of the program code or Software for which Licensee has not acquired a license, or (c) except as specifically authorized herein, distribute or transfer the Software. Licensee understands and acknowledges that it is granted only those rights set out in this Agreement and in any Order Schedule and no other rights.
This Agreement does not convey to Licensee any rights of ownership in the Software. All right, title, and interest in the Software and unless specified otherwise in any ideas, know-how, work product and programs which are developed by Licensor in the course of providing an Maintenance or Consulting Services, including any enhancements or modifications made to the Software, shall at all times remain the property of Licensor or its licensor. Licensee will retain all right, title, and interest in and to the Licensee Products. Licensee acknowledges and agrees that the Software is licensed, not sold. Licensee shall not permit the Software to be accessed or used by anyone other than Licensee's employees whose duties require such access or use.
Licensee will not remove Licensor's proprietary rights notices from any copies of the Software, including archival and back-up copies, if applicable.
4.1. Nondisclosure. Each party may be granted access to Confidential Information (as defined below) of the other party during the term of this Agreement. Each party agrees that it will not use or disclose to any third party any Confidential Information of the other party except as permitted by this Agreement or as authorized by the other party's prior written consent. In no event, will either party use less care to maintain the Confidential Information of the other party than it uses to maintain the confidentiality of its own non-public information, and in no event less than a reasonable degree of care.
4.2. "Confidential Information" means non-public information designated in writing as confidential by the disclosing party. Confidential Information may include (but is not limited to) business methods, business plans, concepts, and test results, including the results of any evaluation of the Software. Orally disclosed Confidential Information must be identified as such at the time of oral disclosure and summarized in writing within thirty (30) days of its disclosure if it is to be protected hereunder.
4.3. Exclusions and Other Conditions. Confidential Information does not include information that: (a) is or becomes publicly available through no act or omission of the other party; (b) is disclosed to a third party by the owning party without restrictions on disclosure; (c) is rightfully acquired by the recipient from a third party; (d) is independently developed; or (e) is previously known to the recipient without nondisclosure obligations. Disclosure of Confidential Information shall not be precluded if such disclosure is in response to a valid order of a court or other governmental body or is otherwise required to be disclosed by law; provided, however, that the recipient of the Confidential Information shall first have given written notice to the discloser of the Confidential Information so that the discloser may seek an appropriate protective order.
5. CHARGES AND PAYMENTS
5.1. For each license granted under this Agreement and any applicable Order Schedule, Licensee agrees to pay Licensor the fees indicated in the applicable Order Schedule. All fees are in non- refundable Indian Rupees as applicable and do not include taxes. If Licensor is required to pay any sales, value-added, use, VAT, or other taxes in connection with this Agreement, other than taxes based on Licensor's income, such taxes will be billed to and paid by Licensee. Licensee will make all payments of fees to Licensor free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Licensor will be Licensee's sole responsibility and consequently the amount of such fees will be increased.
5.2. All fees for Consulting Services are based on an eight (8) hour day and will be billed on actual hours spent providing such services. Licensee will also be billed for any actual and reasonable travel and out-of-pocket expenses incurred therein. Licensor consultants will adhere to the more stringent of either Licensor's or Licensee's travel policy (as provided by Licensee and agreed to by Licensor). Late payments will accrue interest at the rate of eighteen percent (18%) per annum, or at such lower rate required by applicable law.
6. MAINTENANCE AND SUPPORT SERVICES
6.1. Licensor shall provide to Licensee the support and update services set forth in any applicable Order Schedule ("Maintenance Services").
6.2. Licensor will provide Maintenance Services to Licensee so long as Licensee has a supported software license. Maintenance Services are available for the two (2) most recent major versions of the Software.
6.3. Licensor will have no support obligation to Licensee (a) at the end of any annual maintenance period unless Licensee elects to obtain additional support by paying Licensor an annual maintenance renewal fee for Perpetual Licenses; or (b) where Licensee is using a version of the Software that is not the then-current or previous major release; or (c) where the Software has been modified by Licensee.
6.4. For Perpetual Licenses, in the event Licensee elects not to obtain or renew Maintenance Services, Licensee may retain the Software and supporting documentation but will have no further right to Maintenance Services for the Software.
7. WARRANTY AND DISCLAIMER OF WARRANTIES
7.1. Warranty: Licensor warrants that:
(a) as of the Effective Date of this Agreement, it has the right and authority to grant the rights and licenses granted to Licensee under this Agreement; and (b) the Software, as supplied, will perform when properly applied and/or used substantially in accordance with the functions or specifications outlined in the documentation provided to Licensee with the Software for a period of ninety (90) days from the date of the delivery of the Software to Licensee; and
(c) the Consulting Services will be of a professional quality conforming to generally accepted industry standards and practices.
7.2. Disclaimer of Warranties : The warranties set forth in this agreement are exclusive and in lieu of all other warranties, representations and/or conditions, express or implied, with respect the software and any services provided here under except insofar as any such warranties cannot be excluded by law. Licensor specifically disclaims any warranties of merchant ability and fitness for a particular purpose.
7.3. Preproduction Releases. As an accommodation to Licensee, Licensor may provide Licensee with a preproduction release of the Software (often labeled a "beta release"). These releases are not suitable for production use. Such releases are provided on an "as is" basis. Licensor does not warrant preproduction releases.
8.1. The parties agree to defend, indemnify, and/or settle, at their own expense, any action brought against the other party to the extent that it is based on a claim that the Software or Consulting Services (in the case of claims against Licensee), or any Licensee Product (in the case of claims against Licensor) infringes a copyright or trade secret right of any third party. This section states the parties' entire liability for infringement.
8.2. A Party's obligation to indemnify ("Indemnifier") the other party ("Claimant") pursuant to this Section 8 shall only arise if:
(a) the Claimant promptly notifies the Indemnifier in writing of the claim;
(b) the Indemnifier has sole control of the defense and of any negotiations for its settlement; and
(c) the Claimant provides the Indemnifier with reasonable assistance, information, and authority
necessary to perform the above.
9. LIMITATION OF LIABILITY
9.1. Limitation of Remedy. Licensee's sole and exclusive remedy for any breach of the warranty described in Section 7.1(b) will be the repair or replacement of the affected Software.
9.2. No consequential damages except in respect of liability for death or personal injury arising from a party's negligence, in no event shall either party have any liability to the other party for any lost profits, lost data, or any indirect, incidental, special, or consequential damages whether based On breach of contract, tort (including negligence), product liability, or otherwise, and whether or not such party has been advised of the possibility of such damage, arising from the use of, or inability to use or to achieve any particular results from use of, the software, or arising in any other way from, out of, or relating to this agreement.
10. TERM AND TERMINATION
10.1. Term. This Agreement will take effect on the Effective Date of this Agreement and will remain in effect unless and until terminated as provided in this Agreement or in any applicable Order Schedule. Consulting Order Schedules shall expire upon completion of the Consulting Services described therein. Either party may terminate a Consulting Order Schedule upon thirty (30) days prior written notice.
At any time, either party may terminate this Agreement if the other party materially breaches its obligations hereunder and the breaching party does not remedy the breach concerned within thirty (30) days of being asked in writing to do so.
10.2. Effect of Termination. Upon the effective date of termination of this Agreement or any applicable Order Schedule, all rights granted to Licensee under this Agreement (or such terminated Order Schedule) immediately will revert to Licensor, Licensee shall cease using the Software provided under such Order Schedule, destroy or return to Licensor all copies of the Software (including copies in storage media) and any related documentation, and provide Licensor with written confirmation thereof. This requirement applies to all copies of the Software and any related documentation in any form, partial or complete, and whether or not merged into other materials.
11. GENERAL TERMS
11.1. Assignment. The rights and obligations of Licensee under this Agreement shall not be assignable without the prior written consent of Licensor (which shall not be unreasonably withheld) and any attempt to assign them without that consent will be void.
11.2. Waiver. The failure of a party to prosecute its rights with respect to a default or breach hereunder shall not constitute a waiver of the right to enforce its rights with respect to the same or any other breach.
11.3. Force Majeure. Neither party shall be responsible for any reasonable delay in its performance due to causes beyond its reasonable control, provided that the non- performing party gives prompt written notice of such condition and resumes its performance as soon as possible, and provided further that the other party may terminate this Agreement if such condition continues for a period of one hundred eighty (180) days.
11.4. Severability. If any of the provisions of this Agreement are held to be void or unenforceable, the parties agree that such determination will not result in the nullity or unenforceability of the remaining portions of this Agreement. The parties further agree to replace such void or unenforceable provisions of this Agreement with valid and enforceable provisions, which will achieve, to the extent legally permissible, the economic, business and other purposes of the void or unenforceable provisions.
11.5. Audit. During the term of this Agreement and for one (1) year thereafter, Licensor may, upon five (5) business days advance written notice to Licensee, audit Licensee for the purpose of verifying the information provided by Licensee under this Agreement or any applicable Order Schedule, and for the purpose of verifying that Licensee is conforming to the terms of this Agreement or any applicable Order Schedule. Any such audit shall be conducted during regular business hours at Licensee's facilities and shall not unreasonably interfere with Licensee's business activities. If an audit reveals that Licensee has misrepresented its information in violation of an Order Schedule or that Licensee has otherwise materially breached this Agreement or any applicable Order Schedule, then Licensee shall pay Licensor's reasonable costs of conducting the audit in addition to any fees due to Licensee's misrepresentation or material breach and also Licensor reserves the right to terminate this Agreement and the licenses granted thereunder. Audits shall be conducted no more than once annually.
Beyond Square Solutions may provide special offers and discounts from time to time. These may be withdrawn at any time at the sole discretion of Beyond Square Solutions.