Terms and Conditions
This AGREEMENT is made effective on the date of the purchase of the software between Propellente Technologies., Company incorporated under the Companies Act, 2013 (hereinafter referred to as “Licensor"), and the purchaser of the software/ product (hereinafter referred to as "Licensee").
1. GRANT OF LICENSE
Subject to the terms and conditions of the Agreement, Propellente Technologies grants to Licensee a non-exclusive, non-transferable license to use the software. Licensee may use the Licensed Programs in for its own use and may translate or modify the licensed programs or incorporate them into other software. Licensee may not, however, transfer or sublicense the Licensed Programs to any third party, in whole or in part, in any form, whether modified or unmodified. Licensor shall enable the Licensee to download one complete copy of the Software.
Licensee shall pay to Licensor the amount as mentioned on the website from where the order is placed, as one-time, upfront fees in consideration for the licenses and rights granted hereunder (hereinafter referred to as the "License Fee").
Once paid, the License Fees or any part thereof is non-refundable. No claim for refund of the License Fees shall be entertained under any circumstances.
License fees do not include any shipping, duties, bank fees, sales, use, excise or similar taxes due. If Licensor is required to pay any such amounts, Licensee shall reimburse Licensor in full.
The original and any copies of the Licensed Programs, made by Licensee, including translations, compilations, partial copies, modifications, and updates, are the property of Licensor
4. PROPRIETARY RIGHTS
Licensee recognises that Licensor regards the Licensed Programs as its proprietary information and as confidential trade secrets of great value. Licensee agrees not to provide or to otherwise make available in any form the Licensed Programs, or any portion thereof, to any person other than employees of Licensee without the prior written consent of Licensor. Licensee further agrees to treat the Licensed Programs with at least the same degree of care with which Licensee treats its own confidential information and in no event with less care than is reasonably required to protect the confidentiality of the Licensed Programs.
5. REPRESENTATIONS AND WARRANTIES
Mutual. Each of the parties represents and warrants to the other as follows.
(i)such party is a legal entity duly organised, validly existing and in good standing;
(ii)such party has the power and authority to conduct its business as presently conducted and to enter into, execute, deliver and perform this Agreement.
(iii)This Agreement has been duly and validly accepted by such party and constitutes the legal, valid and binding obligations of such party respectively, enforceable against such party in accordance with their respective terms;
(iv)the acceptance, execution, delivery and performance of this Agreement does not and will not violate such party's charter or by-laws; nor require any consent, authorisation, approval, exemption or other action by any third party or governmental entity.
(v) Licensor licenses, and Licensee accepts, the licensed programs “AS IS". Licensor PROVIDES NO WARRANTIES AS TO THE FUNCTION OR USE OF THE LICENSED PROGRAMS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANT-ABILITY OR FITNESS FOR PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED PROGRAM IS WITH LICENSEE. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED PROGRAMS WILL MEET LICENSEE'S REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED PROGRAMS WILL BE UNINTERRUPTED OR ERROR FREE.
(a)Subject to Licensee's payment obligations, this Agreement shall commence as on the date of making payment of the Software by the Licensee to the Licensor and shall continue until terminated by either party.
(b)The Licensor retains the right to terminate the license at any time, if the Licensee is not abiding by any of the terms of the Agreement. The Licensee may terminate the Agreement at any time at its own discretion by uninstalling the Software and /or by destroying the said Software (or any copies thereof). However, the Licensee shall not be entitled to seek any refund of the amount paid by it to the Licensor, under any circumstances. (c) In the event of termination, Licensee will immediately discontinue use of the Licensed Programs. Within one (1) month after termination of this Agreement, Licensee will furnish to Licensor a certificate which certifies with respect to each of the Licensed Programs that, through its best effort and to the best of its knowledge, the original and all copies, in whole or in part and in any form, of each of the Licensed Programs have been destroyed. The provisions of Sections 1, 3, 4 and 7 hereof shall survive any termination of this Agreement.
7. LIMITATION OF LIABILITY
LICENSOR'S LIABILITY TO LICENSEE UNDER ANY PROVISIONS OF THIS AGREEMENT FOR DAMAGES FINALLY AWARDED SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID HEREUNDER BY LICENSEE TO LICENSOR. IN NO EVENT SHALL LICENSOR BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF USE, LOSS OF PROFITS OR INTERRUPTION OF BUSINESS, HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY
The Licensee release the Licensor from, and agree to indemnify, defend and hold harmless the Licensor (and its officers, directors, employees, agents and Affiliates) against, any claim, loss, damage, settlement, cost, taxes, expense or other liability (including, without limitation, attorneys' fees) (each, a "Claim") arising from or related to: (a) any actual or alleged breach of any obligations in this Agreement; (b) any refund, adjustment, or return of Software,(c) any claim for actual or alleged infringement of any Intellectual Property Rights made by any third party or damages related thereto; or (d) Taxes.
9. FORCE MAJEURE
The Licensor will not be liable for any delay or failure to perform any of its obligations under this Agreement by reasons, events or other matters beyond its reasonable control.
10. RELATIONSHIP OF PARTIES
The Licensor and Licensee are independent legal entities, and nothing in this Agreement will be construed to create a partnership, joint venture, association of persons, agency, franchise, sales representative, or employment relationship between the parties. The Licensee will have no authority to make or accept any offers or representations on behalf of the Licensor. The relationship between the parties is that of Licensor and Licensee only, and the rights, duties, liabilities of each party shall be governed by this Agreement.
The Licensor may amend any of the terms and conditions contained in this Agreement at any time and solely at its discretion. Any changes will be effective upon the posting of such changes on the Portal/ website, and the Licensee is responsible for reviewing these changes and informing itself of all applicable changes or notices. The continued use of a software by the Licensee after posting of any changes by the Licensor, will constitute the acceptance of such changes or modifications by the Licensee.
(a)General Provisions. This Agreement: (i) may be amended only by a writing signed by each of the parties; (ii) may be executed in several counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument; (iii) contains the entire agreement of the parties with respect to the transactions contemplated hereby and supersedes all prior written and oral agreements, and all contemporaneous oral agreements, relating to such transactions; (iv) shall be governed by, and construed and enforced in accordance with, the laws of India; and (v) shall be binding upon, and inure to the benefit of, the parties and their respective successors and permitted assigns. Each of the parties hereby irrevocably submits to the jurisdiction of the Courts at Bangalore, India, for the purposes of any action or proceeding arising out of or relating to this Agreement or the subject matter hereof and brought by any other party.
(b)Assignment. Except for the purpose of customization as mentioned in clause 2(b)(iv) above, Licensee cannot assign, pledge or otherwise transfer, whether by operation of law or otherwise, this Agreement, or any of its obligations hereunder, without the prior written consent of Licensor, which consent shall not be unreasonably withheld.
(c)Notices. Unless otherwise specifically provided herein, all notices, consents, requests, demands and other communications required or permitted hereunder:
(i)shall be in writing;
(ii)shall be sent by messenger, certified or registered mail/email, or reliable express delivery service, to the appropriate address(es) set forth below; and
(iii)shall be deemed to have been given on the date of receipt by the addressee, as evidenced by a receipt executed by the addressee (or a responsible person in his or her office), the records of the Party delivering such communication or a notice to the effect that such addressee refused to claim or accept such communication, if sent by messenger, mail or express delivery service.
All such communications shall be sent to the following addresses or numbers, or to such other addresses or numbers as any party may inform the others by giving five days' prior notice:
If to Propellente Technologies.:
#15, 32nd Cross, 7th Block, Jayanagar, Bengaluru, India – 560082
If to Licensee:
At the address mentioned by the Licensee (at the time of placing order of generating Invoice)
(d)Severability. It is fully the intent of the parties that the provisions of this Agreement be enforced permissible under the laws and public policies of India in which enforcement hereof is sought. In furtherance of the foregoing, each provision hereof shall be severable from each other provision, and any provision hereof which is/ becomes unenforceable shall be subject to the following: (i) if such provision is contrary to or conflicts with any requirement of any statute, rule or regulation in effect, then such requirement shall be incorporated into, or substituted for, such unenforceable provision to the minimum extent necessary to make such provision enforceable; (ii) the court, agency or arbitrator considering the matter is hereby authorized to (or, if such court, agency or arbitrator is unwilling or fails to do so, then the parties shall) amend such provision to the minimum extent necessary to make such provision enforceable, and the parties hereby consent to the entry of an order so amending such provision; and (iii) if any such provision cannot be or is not reformed and made enforceable pursuant to clause (i) or (ii) above, then such provision shall be ineffective to the minimum extent necessary to make the remainder of this Agreement enforceable. Any application of the foregoing provisions to any provision hereof shall not affect the validity or enforceability of any other provision hereof.
(e)By purchasing the Software, the Licensee acknowledge that it has read this Agreement, and that it agrees to the content of the Agreement, its terms and agree to use the Software in compliance with this Agreement.
(f)The Licensor holds the sole copyright of the Software. The Software or any portion thereof is a copyrightable matter and is liable to be protected by the applicable laws. Copyright infringement in any manner can lead to prosecution according to the current law. The Licensor reserves the right to revoke the license of any user who is not holding any license or is holding an invalid license.
(g)This Agreement gives the right to use only one copy of the Software on one domain solely for the own personal or business use of the Licensee, subject to all the terms and conditions of this Agreement. A separate License has to be purchased for each new Software installation. Any distribution of the Software without the written consent of the Licensor (including non-commercial distribution) is regarded as violation of this Agreement and will entail immediate termination of the Agreement and may invite liability, both civil and criminal, as per applicable laws.
(h)The Licensor reserves the rights to publish a selected list of users/ Licensees of its Software, and no permission of any Licensee is needed in this regard. The Licensee agrees that the Licensor may, in its sole discretion, disclose or make available any information provided or submitted by the Licensee or related to it under this Agreement to any judicial, quasi-judicial, governmental, regulatory or any other authority as may be required by the Licensor to co-operate and / or comply with any of their orders, instructions or directions or to fulfill any requirements under applicable Laws.
(i)If the Licensee continues to use the Software even after the sending of the notice by the Licensor for termination, the Licensee agree to accept an injunction to restrain itself from its further use, and to pay all costs (including but not limited to reasonable attorney fees) to enforce injunction or to revoke the License, and any damages suffered by the Licensor because of the misuse of the Software by the Licensee.
If any dispute arises between the Licensor and the Licensee at any time, in connection with the validity, interpretation, implementation or alleged breach of any provision of this Agreement, the same shall be referred to a sole Arbitrator who shall be an independent and neutral third party appointed exclusively by the Licensor. The Licensee shall not object to the appointment of the Arbitrator so appointed by the Licensor. The place of arbitration shall be Bangalore, India. The Arbitration & Conciliation Act, 1996 as amended by The Arbitration & Conciliation (Amendment) Act, 2015, shall govern the arbitration proceedings. The arbitration proceedings shall be held in the English language.
This document is an electronic record in terms of Information Technology Act, 2000 and the amended provisions pertaining to electronic records in various statutes as amended by the Information Technology Act, 2000. This electronic record is generated by a computer system and does not require any physical or digital signatures.