END USER SOFTWARE LICENSE AGREEMENT
This End User License Agreement (“Agreement“) is a legal agreement between you (“Website VISITOR ” or “Licensee”), and KumoTeam (a Wholly owned subsidiary of Kumo-Applications Pvt Ltd) (the “Licensor”) (together the “Parties” and individually a “Party“).
- The Licensor owns the Software including all intellectual property rights therein and has the rights thereunder necessary to grant a license for use of the Kumo Team Software (“Software”).
- The Parties wish to enter into this Agreement to confirm and record the terms and conditions subject to which the Licensor shall grant to the Licensee a license to use Software and other terms and conditions relating thereto.
Now it is hereby agreed between the Parties as follows:
- 1. DEFINITIONS
1.1 In this End User License Agreement, unless the context otherwise requires, the following expressions have the following meanings:
a) “Confidential Information” shall mean the terms of this Agreement, the Software and any information that shall be considered confidential by a reasonable person taking into consideration the nature of the information and the circumstances governing its disclosure including but not limited to information relating to copyright or copyrightable subject matter, patented or patentable subject matter, trade secrets, intentions, know-how, financial conditions, product development plans, transactions and business of the Parties and its affiliates or their customers or suppliers;
c) “Documentation” shall mean any user manual accompanying the Software, and any other technical documentation, specifications or materials pertaining to the Software in any form;
d) “Effective Date” shall mean the date on which You agree to be bound by this Agreement as manifested by the conduct described in the preamble above;
e) “Initial Term” has the meaning assigned to it in Clause 7.1;
f) “License Fee” shall mean the fee to be paid by You to the Licensor for Use of the Software in terms of Clause 4;
g) “License Period” shall mean the time period for which the License has been granted to the Licensee under this Agreement and described in more detail in Clause 7.1;
h) “Production Location” shall means the site for the Use of the Software;
i) “Software” shall mean the <Kumo Team> Software provided to You under this license . The specifications of the Software are provided at www.kumoteam.com. The term Software includes any updated versions of the Software provided to You by the Licensor;
j) “Use” shall mean accessing the Software through any access device or processing the instructions contained in the Documentation or utilization of the Documentation with the Software for the Licensee’s business.
- 2. TERMS OF LICENSE
2.1 Upon acceptance of this Agreement and subject to compliance by You with the terms of this Agreement including without limitation payment of the License Fee by You to the Licensor, the Licensor grants You, during the term of this Agreement, a limited, non-exclusive, non-transferable, worldwide license to Use the Software for the purpose of geo-locating people and related activities.
2.2 Licensor shall make available extensions, upgrades to higher versions of the Software, if any, and services in this regard upon payment of applicable fee by You.
2.3 Title and sole ownership of the Software, and all intellectual property reflected therein or embodied thereby, including patent, trademark, copyright and trade secret rights, is and shall remain in/with the Licensor. You shall not take any measures that would diminish or interfere with the Licensor’s ownership rights.
2.4 You shall Use the Software in accordance with the Documentation.
2.5 Each user shall be assigned access credentials against each Software user Licensee purchased in accordance herewith.
2.6 You may not rent, lease, lend, sell, redistribute or sublicense the Software. You may not copy (except as expressly permitted by this license), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Software, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Software). Any attempt to do so is a violation of the rights of the Licensor. If You breach this restriction, You may be subject to prosecution and damages, without prejudice to other rights and remedies available to the Licensor under applicable laws. The terms of the license will govern any upgrades provided by the Licensor that replace and/or supplement the original Software, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
- 3. LICENSE FEES
The Software and Services shall be made available to You for the Initial Term on payment as set out in Annexure A hereof (“License Fee”). Prior to any renewal of this Agreement beyond the Initial Term, the Parties shall mutually agreed on the license fees payable by the Licensee in respect of the Software for the remainder License Period.
- 4. DELIVERY
4.1 Upon payment of the License Fees, the You shall have access to the Software.
4.2 The Licensor agrees to deliver any customization to the Software and/or the Documentation at mutually agreed cost and time.
4.3 The Licensor will deploy source code of the software that will run the application for your SINGLE company usage along with the requisite licenses as per agreed pricing
4.4 The software will be hosted on hardware as specified by The Licensor , this hardware is to be provided & maintained in acceptable condition by the licensee
- 5. REPRESENTATIONS AND WARRANTIES
5.1 You expressly acknowledge and agree that use of the Software is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you. to the maximum extent permitted by applicable law, the Software and any Services are provided “AS IS” and “AS AVAILABLE”, with all faults and without warranty of any kind, and the Licensor hereby disclaims all warranties and conditions with respect to the Software and any Services, either express, implied or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment, and non-infringement of third party rights. The Licensor does not warrant against interference with Your enjoyment of the Software, that the functions contained in, or Services performed or provided by, the Software will meet your requirements, that the operation of the Software or Services will be uninterrupted or error-free, or that defects in the Software or Services will be corrected. No oral or written information or advice given by Licensor or its authorized representative shall create a warranty. Should the Software or Services prove defective, You assume the entire cost of all necessary servicing, repair or correction. Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the above exclusion and limitations may not apply to You.
5.2 You represent and warrant that:
(i) You will only use the Software according to the terms of this Agreement and in compliance with applicable laws and regulations;
(ii) You have the authority to enter into this Agreement and have not entered into any agreement, obligation or restriction which would interfere with Your obligations hereunder;
(iii) You will not adapt, alter, publicly display, publicly perform, translate, embed into any other product, or otherwise create derivative works of, or otherwise modify the Software or Services;
(iv) You will not sub-license, lease, rent, loan, or distribute the Software or Services to any third party;
(v) You will not transfer the Software or Services to any third party;
(vi) You will not attempt or cause any third party to attempt to reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, sequencing, structure or definition of the Software;
(vii) You will not download or transmit the Software electronically in any manner other than as permitted under this Agreement;
(viii) You will not use the Software on any equipment where the failure of Software could lead to personal injury, death or environmental damage;
(ix) You will not remove, alter or obscure any proprietary notices on the Software or Services, or the applicable documentation therefore;
(x) You will not allow third parties to access or use the Software or Services, including without limitation any use in any application service provider environment, service bureau, or time-sharing arrangements; or
(xi) You shall provide all reasonable support that the Licensor may require in implementation of the Software on the Computer(s).
- 6. INTELLECTUAL PROPERTY RIGHTS
6.1 Notwithstanding anything contained in this Agreement, all intellectual property rights (including patent, trademark, copyright, and trade secret rights), comprised in the Software, including any and all updates and Documentation in connection thereof belong to the Licensor and are solely owned by it.
6.2 You do not acquire hereby any intellectual property rights or other proprietary rights, including patents, designs, trademarks, copyright or rights in any confidential information or trade secrets, in or relating to the Software or any part thereof, other than the rights expressly licensed to You under this Agreement.
6.3 You shall notify the Licensor immediately if the You become aware of any illegal or unauthorised use of the Software or the Documentation or any of the intellectual property rights therein or relating thereto and will assist the Licensor in taking all steps necessary to defend the Licensor’s or its parent or associated companies’ rights therein.
6.4 You may not remove or alter any trademark, logo, copyright or other proprietary notice in or on the Software. This license does not grant you any right to use the trademarks, service marks or logos of the Licensor.
- 7. TERM AND TERMINATION[PC1]
7.1 This Agreement shall become effective on and from the Effective Date and remain in force until the expiry of 1 (ONE) Years from the Effective Date (“Initial Term”). Unless either Party gives notice of 2 (two) months days for non-renewal of the Agreement prior to the end of the Initial Term, this Agreement shall automatically renew for successive periods of 1 (one) year. The Initial Term of this Agreement and any subsequent renewal thereof shall together be referred to in this Agreement as the “License Period”.
7.2 The Licensor shall be entitled to terminate this Agreement in the following events:
(i) on non-payment of the License Fee as agreed to between the Parties from time to time. Upon the License Fee becoming due for payment, the Licensor may at its sole discretion allow the Licensee a further period of 7 (seven) days for making the payment, failing which the Agreement shall stand terminated immediately upon the expiry of the said period;
(ii) if the Licensee Uses or otherwise deals with the Software in any manner other than for the purposes described in this Agreement;
(iii) Any type of misuse of the application or attempt to breach the security infrastructure
7.3 Either Party may, at its option and upon written notice to the other Party, terminate this Agreement if:
(i) a material breach of this Agreement by the other Party is not remedied within 30 (thirty) days after the breaching Party’s receipt of written notice of the breach;
(ii) the other Party files a petition for bankruptcy or enters into any arrangement with its creditors or any other similar document or a receiver, trustee in bankruptcy or similar officer is appointed for the other Party’s property; or
(iii) this Agreement is assigned to a third party without prior written consent of the other Party.
7.4 Clauses 7, 8, 9, 10, 11, 12 of this Agreement shall survive any expiration or termination of this Agreement and shall bind the Parties and their successors, heirs, assigns and legal representatives.
- 8. CONSEQUENCES OF TERMINATION
Upon termination of this Agreement by either Party:
(i) the License granted under this Agreement and the Services shall terminate;
(ii) the Licensee shall stop all usage of the Software and destroy all copies, full or partial, of the Software;
(iii) the Licensee shall return to the Licensor or destroy all Documentation provided in connection with the Software;
- 9. LIMITATION OF LIABILITY
To the maximum extent permitted by law, the Licensor shall not be liable for any personal injury or damage whatsoever, including but not limited to any loss of profit, data, or use of the Software or special, incidental, or consequential damages or other similar claims arising out of or related to the use or inability to use the Software, even if the Licensor has been advised of the possibilities of such damages. The Licensee shall load and use the Software at his own risk without any liability of the Licensor for any loss or damage of any kind including a loss of property or otherwise. Notwithstanding any damage suffered by the Licensee, the Licensor’s liability shall be limited the actual amount of License Fee paid by the Licensee.
- 10. INDEMNITY
The Licensee shall indemnify, defend and hold harmless the Licensor, its suppliers, affiliates, officers, directors, employees, representatives and agents from and against all losses, damages, claims, liabilities, costs or expenses of whatever form or nature, including attorney fees and other costs arising out of or related to the Licensee’s use of the Software. Licensor shall immediately notify the Licensee of such claims and the Licensee shall have the exclusive right to defend such claim, provided that if the Licensee does not undertake such defense, the Licensor at its option shall undertake such defense and the Licensee shall be liable for all costs incurred by Licensor in such regard. The Licensor shall not be required to obtain prior approval of the Licensee for undertaking such defense.
- 11. CONFIDENTIALITY
11.1 Subject to Article 11.2, each of the Parties agrees and shall procure that its representatives shall keep strictly secret and confidential, and under no circumstances shall use or disclose to or allow the use by any person or entity which is not a Party, any Confidential Information unless disclosure or use of such information is expressly permitted under this Agreement or by the prior written consent of the other Parties and the recipient of the Confidential Information is made aware of and complies with all of the disclosing Party’s obligations of confidentiality under this Agreement as if the recipient was a Party to this Agreement.
11.2 Notwithstanding the foregoing, the obligation of confidentiality shall not apply to any disclosure of information (i) that is in or enters the public domain through no fault of the receiving person, (ii) that was in the possession of the receiving person prior to receipt under this Agreement, (iii) required by law, regulation, legal process or order of any court or governmental body having jurisdiction, but the disclosing Party shall notify the other Party as soon as reasonably possible (and in advance where possible), to the extent lawful, so that the other Party can seek protections or exceptions to the disclosure.
- 12. GOVERNING LAW AND DISPUTE RESOLUTION
12.1 This Agreement shall for all purposes be governed by and construed and enforced in accordance with the laws of India.
12.2 If any dispute or difference arises between the Parties hereto during the subsistence of this Agreement or thereafter, in connection with the validity, interpretation, termination, implementation or alleged breach of any provision of this Agreement or regarding any question relating hereto, the Parties shall endeavour to settle such dispute or difference amicably. In the event that they are unable to agree to an amicable solution to the dispute or difference the Parties shall refer such dispute or difference for arbitration as per Clause 12.3 hereunder.
12.3 Upon failure to amicably settle within a period of 15 (fifteen) days from raising of the dispute or difference, all disputes arising out of or in connection with this Agreement shall be referred to binding arbitration in accordance with Indian Arbitration and Conciliation Act, 1966. The arbitral tribunal shall consist of 3 arbitrators, one each appointed by you and the Licensor, and the third appointed by the two chosen arbitrators. The arbitration shall take place in New Delhi. The proceedings of arbitration shall be conducted in the English language.
- 13. MISCELLANEOUS
13.1 Consent to Use of Data: You agree that the Licensor may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the Software and/ or Services. Licensor may use this information, to improve its products or to provide services or technologies to You.
13.2 All notices, consents, requests, demands and other communications required or permitted hereunder:
(i) shall be in writing;
(ii) shall be sent by certified or registered mail or a reliable express delivery service, charges prepaid as applicable, to the appropriate address(es) of the Parties set forth below, or to such other addresses as any Party may inform, in writing, to the other Parties:
If to the Licensor:
Name: KumoApps Pvt LTD
Address: 9/2 Manorama Ganj Indore MP 456010 India
If to the Licensee:
13.3 Should any provision herein be held to be illegal, invalid or unenforceable, such provision shall, to the extent practicable and permitted, be modified to be enforceable while still reflecting the original intentions of the Parties. To the extent any such modification is not practicable or permitted, then such provision shall be deemed stricken from the Agreement. In either event, all other terms and conditions shall remain in full force and effect.
13.4 No amendment, modification or waiver of any provision of this Agreement shall be effective unless set forth in a writing executed by an authorised representative of each Party. No failure or delay by either Party in exercising any right, power or remedy will operate as a waiver of any such right, power or remedy. No waiver of any provision of this Agreement shall constitute a continuing waiver or a waiver of any similar provision unless expressly set forth in a writing signed by an authorised representative of each Party.
13.5 The Licensor shall be entitled to sub-contract any or all of its obligations under this Agreement to a sub-contractor and shall also be entitled to assign this Agreement to any of its affiliates or to any successor in interest to all or substantially all of its business or assets related to this Agreement, whether by merger, operation of law, assignment, purchase or otherwise.
– BY CLICKING THE ACCEPT BUTTON – YOU ARE HERE BY ACCEPTING THIS AGREEMENT