Product Licensing Terms and Conditions
- Definitions and Interpretation:
In these terms and conditions: (i) capitalised terms defined by inclusion in quotations and/or parenthesis have the meanings so ascribed; and (ii) the following capitalised terms shall have the following meanings elucidated here under:
- “Applicable Law” means and includes all applicable statutes, enactments, acts of legislature or parliament, laws, ordinances, rules, bye-laws, regulations, notifications, guidelines, policies, directions, directives and orders of any governmental authority or self-regulatory agency, statutory authority, tribunal, board, court or recognised stock exchange of India;
- “Business Day” means a day other than Saturday and Sunday on which scheduled commercial banks are open for normal banking business in Delhi, India;
- “Confidential Information” shall mean and include, but is not restricted to all non-public information of either Party that is technical and commercial concerning business, books of record and account, data systems, software, services, any materials, trade secrets, know-how, formulae, processes, algorithms, ideas, strategies, inventions, data, network configurations, system architecture designs, flow charts, drawings, proprietary information, Personal Data, business and marketing plans, financial and operational information, and all other non-public information, material or data relating to the current and/ or future business and operations, wages related information provided by the disclosing party (“Disclosing Party”) to the other Party (“Receiving Party”) pursuant to these terms and conditions, including the existence and the terms and conditions of these terms and conditions or any other information which may come to the knowledge of the Receiving Party. Confidential Information shall not include information which, as evidenced by records,: (a) is or becomes a part of the public domain through no breach of its confidentiality obligations by the Receiving Party; (b) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (c) is lawfully disclosed to the Receiving Party by a third party, entitled to disclose such information, without restriction on disclosure; or (d) is independently developed by the Receiving Party or its representatives without reference to the Confidential Information.
- “Go-Live Date” shall mean the date on which the Software link is activated for the use of the employees of the Licensee Company.
- “Intellectual Property” means all trade names, trademarks, service marks, service names, trade dress, patents, copyrights, website platforms, logos, registered designs, domain names and utility models, inventions, Confidential Information, brand names, databases and database rights, know-how, and business/corporate names, and any similar rights situated in any country and the benefit of any of the foregoing (in each case whether registered or unregistered and including applications for the grant of any of the foregoing and the right to apply for any of the foregoing in any part of the world);
- “Software” means the HR Analytical Program being provided by the Licensor as per further specifications stated herein in these terms and conditions.
- Subscription Form:
The Licensee is required to fill and submit the “Subscription Form” via which, the Licensee shall send a request to subscribe to the Software. The Subscription Form shall be governed by these terms and conditions.Your request and our acceptance of your request is the day on which the subscription will begin and the date from which these terms and conditions become applicable to you.
The term of the license shall be governed by the order form that has been submitted by the Licensee to the Licensor in order to subscribe to the Software. In general, the “Subscription Period” is 1 (one) year from the Go-Live Date, and thereafter, the Licensee is required to renew the license to the Software, failing which, the Licensor shall be at the liberty to revoke and suspend the license of the Licensee to use the Software, by giving a single intimation of expiry of the Subscription Period.
- Grant of License and Services:
(a) Subject to the terms and conditions as stated herein in these terms and conditions, the Licensor grants to Licensee a non-exclusive, non-transferable license, to use the Software and Services. The salient features of the Software and our TAT’s for your questions and concerns can be accessed here; (b) Licensee through its employees may use the Software for its own internal purposes and unless otherwise agreed in these Terms and Conditions and/or else where via a separate agreement or via an amendment, Licensee agrees that the Software may not be transferred or sublicensed to any other and/or third parties. Licensee may not use the Software for any other purposes except as expressly permitted under these Terms and Conditions; (c) the Licensor shall perform the Services with all due skill, care and diligence in a safe, competent and timely manner and in accordance with the Applicable Laws and requirements of the Agreement; (d) the grant of license is subject to explicit representation by the Licensee that it shall not: (i) decompile, disassemble, or reverse engineer the Software; (ii) alter or modify the Software; or (iii) sell, convey or otherwise transfer the Software; (e)The Licensor agrees that all authorized users shall be entitled to benefit from the license being granted hereunder and shall use the license in accordance with these Terms and Conditions; and (f) The Licensor agrees to protect the data collected from the Licensee and to use the same only for the purpose of providing the Services under the license granted herein.
In consideration of the Licensor agreeing to provide the Software and the Services to the Licensee, the Licensee shall pay a License Fee as stated in the Subscription Form that has been filled by the Licensee. The License Fee is calculated based upon the number of authorised users that the Licensee signs up for. Unless stated otherwise, the License Fee shall always be exclusive of taxes and shall be liable for an increment on an annual basis. In the event, additional authorised users are required to be subscribed, then the Licensee shall be billed for such additional users in the subsequent billing cycle on a pro-rata basis in the blocks of 50 users. Any and all modification specific to a Licensee shall be governed by separate terms, and shall be charged separately from the License Fee under these terms and conditions. For the purposes of these terms and conditions, “modification” shall mean any upgrades or any customization that the Licensee may request the Licensor to do in the Software.
- Payment Terms:
Licensor shall raise the invoice based on the subscription form that has been submitted by the Licensee. The invoice shall be sent via e-mail and shall quote the Licensee’s PAN and GST Number. The invoice to the Licensee shall be sent on the assigned email address for this purpose and the hard copy shall be couriered only upon the request of the Licensee. Licensor is a registered under the Micro, Small Medium Enterprise Development Act, 1996 (as amended from time to time) (“MSME Act”) as a “MSME Enterprise”, under which the payment to the Licensor is required to be made within a fixed timeline of 30 (thirty) days from the receipt of the Invoice. In the event of delay of payment of the License Fee beyond the 30 (thirty) day period (as stated hereinabove), the license to use the Software shall stand suspended with immediate effect and the same will only be restored upon payment of the License Fee, within the timelines stated hereinafter. Only 1 (one) letter for the delay in payment of the License Fee shall be sent to the Licensee (“Delay Letter”), thereafter, if the Licensee does not make the payment of the License Fee within 15 (fifteen) days of the receipt of the Delay Letter, the Licensee shall be liable to pay compound interest on the License Fee at three times of the bank rate notified by RBI from the date of delay till the actual date of payment, further, the Licensor shall be at the liberty to report such delay in payment to the Micro and Small Enterprise Facilitation Council and terminate these terms and conditions, without any further notice and/or liability.
- General Obligations and Warranties:
(a) The Licensor shall ensure that its employees and representatives shall, in performing its obligations under these terms and conditions, comply in all respects with all relevant Applicable Laws, statutes, regulations and orders for the time being in force; (b) The Licensor hereby undertakes and covenants to not sub-delegate or further entrust, devolve or assign its rights and responsibilities in favour of any other person or party, however, if required the same shall only be undertaken upon prior intimation to the Licensee. Furthermore, in cases of sub-delegation or further entrustment or devolvement or assignment of its rights and liabilities in favour of any other person or party, the Licensor fully understands and agrees that it shall not be relieved from any of its obligations or liabilities which have accrued towards the Licensee, hence the Licensor covenants to be liable for the acts or omissions of its employees, associates, partners, agents etc; (c) The Licensor shall protect the data of the Licensee that it acquires during the license term and shall take proper measures including without limiting the technical and security measures to safeguard the same; (d) Licensor warrants that during the Term: The Service shall perform materially in accordance with the terms stated herein, (i) Licensor shall make commercially reasonable efforts to make the Service available to Licensee 24 hours a day, 7 days a week, every day of each year (except for any unavailability caused by an act of God which is notified to the Licensee); (ii) Licensor will employ then-current, industry-standard measures to test the Software/Service to detect and remediate viruses, trojan horses, worms, logic bombs, or other harmful code or programs designed to negatively impact the operation or performance of the Service, and (iii) it owns or otherwise has sufficient rights in the Software to grant to Licensee a non-exclusive, non-transferable license to use the Software (iv) it shall comply with all Applicable Laws in its provision of the Services; (vi) the provision of the Services and the Software and the use thereof by the Licensee in accordance with the terms herein shall not result in any infringement of third party intellectual property rights.
- Indemnification and Limitation of Liability:
Licensor shall be liable for and shall defend, indemnify and hold the Licensee, its affiliates, their employees, directors, contractors (the “Licensee Indemnified Parties”) harmless from and against any and all claims, liabilities, costs, damages and expenses (including court costs and legal fees) in connection with: (i) any claim made by any third party (including, but not limited to, any claim made by any governmental or statutory authority) against the Licensee Indemnified Parties arising out of or in connection with the performance by the Licensor of its obligations stated herein; (ii) any infringement (whether actual or alleged) of any patent or other intellectual property right arising out of or in connection with licensing the Software; and (iii) Breach of confidentiality obligations; (iv) wilful misconduct, gross negligence or misrepresentations. Licensee shall be liable for and shall defend Licensor, its affiliates, their employees, directors, contractors (the “Licensor Indemnified Parties”) harmless from and against any and all claims, liabilities, costs, damages and expenses (including court costs and legal fees) in connection with any claim made by a third party on account of: Infringement of such third party intellectual property right by the Licensee; wilful misconduct, gross negligence or misrepresentations; and any breach of the provision by the Licensee of the MSME Act that is applicable to the Licensee. Notwithstanding anything contrary to these terms and conditions, in no event shall either Party be liable to the other for any indirect, consequential, special, punitive, exemplary or incidental loss or damages of any nature arising out of or in connection with these terms and conditions at any point of time. In no event shall the aggregate liability of each party together with all of its affiliates arising out of or related to these terms and conditions exceed the total amount paid or payable by Licensee hereunder for the Service giving rise to the liability in the twelve-month period preceding the first incident out which the liability arose. The foregoing limitation shall apply whether an action is in contract or tort and regardless of the theory of liability.
These terms continue to remain in force so long as the Licensee continues to make payment towards the License Fee in a regular manner. The Licensor shall have the full right to suspend and revoke the License to the Software upon continuous non-payment and default in payment of the License Fee.
- Each Party agrees to: (a) use the Confidential Information solely for the purpose of performing its obligations under these terms and conditions; (b) not to disclose any Confidential Information of the Disclosing Party to any third party without prior written consent of the Disclosing Party; (c) limit the dissemination of the Disclosing Party's Confidential Information to only those of the Receiving Party's officers, and employees (“Representatives”) who require access to such information to perform their functions in connection with the purpose for which the Confidential Information is disclosed and to the attorneys and financial advisors on a strict ‘need to know’ basis; (d) to ensure that each person or entity who is permitted to receive or have access to the Confidential Information is bound by a confidentiality obligation consistent with these terms and conditions; (e) to exercise the same degree of care with respect to the Disclosing Party's Confidential Information as it uses for its own confidential information of like importance, but no less than reasonable care; and (f) to return to the Disclosing Party, or if such return is not possible, destroy, Confidential Information of the Disclosing Party at source which will be incapable of being recovered through normal or laboratory means upon receipt of a written request from the Disclosing Party without retaining any copy thereof.
- Either Party shall have a right to disclose the Confidential Information to the legal / regulatory authorities pursuant to a binding court order or government regulation, provided that, if permitted under law, the Receiving Party provides a notice to the Disclosing Party, in order for the Disclosing Party to obtain a protective order. If the Disclosing Party is unable to obtain a protective order, the Confidential Information may be disclosed only to the extent necessary under law.
- Either Party is not permitted to discuss the other Party’s affairs with any member of the press and other news media without written authorization from the appropriate authorized representative of such other Party.
- Each Party acknowledges and agrees that any breach of the confidentiality obligations set forth in this Clause shall cause the other Party irreparable harm for which monetary damages would be inadequate. Accordingly, in the event of such a breach, the Disclosing Party may seek injunctive or other equitable relief to enforce these terms and conditions in addition to any available legal remedies.
- All Confidential Information disclosed by the Disclosing Party hereunder is provided "AS IS" and without warranty of any kind. All Confidential Information shall remain the property of the Disclosing Party. Nothing contained in this Clause or any disclosure pursuant to these terms and conditions shall be construed as granting any license or right under any intellectual property right, whether present or future.
- This obligation to keep information confidential by both Parties shall survive for a period of 1 (one) year after the determination, termination or expiration of these terms and conditions.
- Data Security and Privacy: The Licensor shall maintain physical and technical safeguards which are reasonably expected in, to protect the security, confidentiality and integrity of the data collected from the Licensee (“Data”). The measures pertaining to data privacy at par with GDPR have been employed by the Licensor and the same can be accessed here. The Licensor shall collect certain essential information by virtue of the Licensee’s use of the Services of the Licensor and such data shall be protected and kept private by the Licensor. Upon termination of this license, all the Confidential Information and Data shall be returned to the Licensee. In the event such Confidential Information and Data cannot be returned the same shall be deleted/destroyed by the Licensor and an undertaking to this effect shall be given by the Licensor to the Licensee.
- Notice and Other Communications:
Any notice or other communication required or given under these terms and conditions shall be communicated or conveyed by the means of email through the registered email address of the relevant party as set out in the subscription form.In the event of change of email address, the onus of notification of such a change is on the party seeking modification of communication details In the event a notice or any other communication is conveyed in person or vide courier, it shall be deemed to have been received at the time of delivery or otherwise on the next business day of the recipient. All notices or other communications between the Parties shall be in the English language.
- Notice and Other Communications:
- Each Party shall retain all right, title and interest in its Intellectual Property Rights. No interest whatsoever in the other Party's Intellectual Property Rights is granted via the license and these terms and conditions.
- IP belonging to Licensor: The Licensor shall at all times own all rights, interest and title in all copyright, trademark, patents derivate works, designs and any other intellectual property and any bug fixes, improvements, updates thereto in the Software. The Licensor retains all ownership and use rights in the Software. The Licensor owns all rights in and to the Software and has full power and authority to grant the rights set forth herein. The Licensee agrees not to license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Software and/or Service(s) available to any third party, other than the agreed users/employees.
- IP belonging to Licensee: All right, title and interest in and to any material, document, equipment, data, tool, application, software, hardware, product belonging or licensed to Licensee (by any other third-party) including all Intellectual Property Rights therein (collectively, “Licensee Material”) are and will remain with Licensee and the respective rights holders in any third party provider to Licensee. Licensor has no right, license or authorization with respect to any of Licensee Material. The Licensee shall approve the usage of Licensee’s logo/trademark/brand-name for the purposes of marketing / branding / association / advertising by the Licensor, including using the Licensee’s service feedback/experience or collective analytics.
- Business Ethics:
The Licensor shall declare any conflicts of interest with the Licensee including any relationship or financial interest of any nature whatsoever with employees, managers, other suppliers, Licensors or stakeholders of the Licensee. The Licensor shall comply with the Anti-Bribery and Corruption (AB&C) requirements as applicable to them. The Licensor undertakes that he has not given, offered or promised to give directly or indirectly any bribe, commission, gift, consideration, reward, or inducement to any of the employees of the Licensee or their agent or relatives for showing or agreeing to show favour or disfavour to any person in relation to licensing their Software to the Licensee.
- Governing Law & Dispute Resolution Mechanism:
The terms stated herein is in the form of an agreement and the same shall be governed by, construed and enforced in accordance with the laws of India and the courts in New Delhi shall have the jurisdiction over the disputes arising out of these terms stated herein. Any dispute or difference whatsoever arising between the parties out of or relating to the interpretation, meaning, scope, operation or effect of these terms and conditions or the existence, validity, breach or anticipated breach thereof or determination and enforcement of respective rights, obligations and liabilities of the parties thereto shall be amicably settled by way of mediation. If the dispute is not conclusively settled within a period of 30 (thirty) days from the date of commencement of mediation or such further period as the parties shall agree in writing, the dispute shall be referred to and finally resolved by arbitration under the Arbitration and Conciliation Act, 1996 (as amended from time to time). The arbitration shall be conducted by a Sole Arbitrator to be appointed mutually by the Parties, failing which the same shall be appointed by the Delhi High Court. The Arbitration shall be conducted in English and the seat of Arbitration shall be New Delhi. The cost of the arbitration shall be equally divided between the Parties. The award made in pursuance thereof shall be final and binding on the Parties.
Other Legal Provisions:
- Waiver: Neither the failure nor any delay on the part of any Party in exercising any right, power or privilege under these terms and conditions or the documents referred to in these terms and conditions shall operate as a waiver thereof, nor shall any waiver on the part of any Party of any such right, power or privilege, nor any single or partial exercise of any such right, power or privilege, preclude any other or further exercise thereof or the exercise of any other such right, power or privilege.
- Assignment: These terms and conditions, or any right or interest herein, shall not be assignable or transferable by any Party except with the prior written consent of the other Party. For avoidance of doubts, change of control or internal reorganization of a party shall not deem to be an assignment for the purpose of this clause and no prior approval from the other party shall be required for the same.
- Amendments: These terms and conditions may not be amended, modified or supplemented except by a written instrument executed by each of the Parties.
- Relationship between the Parties: The Licensor shall for the purposes of these terms and conditions be an independent contractor at all times. These terms and conditions does not constitute the Licensor as an agent, legal representative, partner or an employee of the Licensee. The Licensor shall not make any contract, agreement, warranty or representation on behalf of the Licensee, or create any obligation, express or implied, on behalf of Licensee. The rights and obligations under these terms and conditions will inure to the benefit of the Parties hereto. These terms and conditions shall not create any rights of any person who is not a party to these terms and conditions.
- Entire Agreement: These terms and conditions constitutes the entire agreement between the Parties relating to the subject matter hereof and supersedes any and all prior agreements, including letters of intent and term sheets, either oral or in writing, between the Parties with respect to the subject matter herein.
- Survival: The termination of these terms and conditions shall in no event terminate or prejudice: (i) any right or obligation arising out of or accruing under these terms and conditions attributable to events or circumstances occurring prior to such termination; (ii) any provision which by its nature is intended to survive termination, (Indemnification and Limitation of Liability), (Intellectual Property Rights); (Confidentiality);(Governing Law), (Dispute Resolution) and (Miscellaneous).
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