This Software License Agreement (hereinafter referred to as the "Agreement") entered into as of the 10th day of Oct, 2018 (hereinafter referred to as the "Effective Date") is entered into;
Varadendra Softek Pvt Ltd, a company registered under the Indian Companies Act, 1956 and having its registered office at Flat No. 601, 6th Floor, B/Wing,Sai Anand Chs, Anand Nagar, DAHISAR (E), Mumbai City - 400068, Maharashtra - India. India. (hereinafter called the "Licensor" which expression shall unless repugnant to the meaning or context thereof be deemed to include their successors and permitted assigns) of the ONE PART; and
GSB SamajPune, (hereinafter called the "Licensee" which expression shall unless repugnant to the meaning or context thereof be deemed to include their successors and permitted assigns) of the SECOND PART.
Licensor and Licensee shall jointly be referred to as "Parties" and severally as the "Party".
WHEREAS, the Licensor is the owner of the Software (as defined in this Agreement) and has the worldwide rights to license the Software;
WHEREAS, the Licensee wishes to install and Use (as hereinafter defined), the Software at the Premises (as defined in this Agreement) for the Purpose (as defined in this Agreement) and the Licensor is willing to provide such Software and grant a Licence (as hereinafter defined), to the Licensee in accordance with the terms and conditions of this agreement.
NOW THEREFORE, in consideration of the mutual promises and agreements set forth in this Agreement and in the annexed Schedules, the Parties hereby agree as follows:
In this agreement, unless the context requires otherwise, the following terms shall have the following meanings:
'Concurrent User/s' refers to the number of computer users logged onto the Single Server at a particular time, and includes computer users that can word simultaneously on the Software.
'Equipment' means that minimum dedicated computer machinery identified in Schedule 1.
'Intellectual Property Rights' means all intellectual property rights and includes without limitation copyrights, patents, trade marks, service marks, database rights and rights to extract data, registered and unregistered designs, rights in circuit layouts and semi-conductor topography rights, trade secrets, rights of confidence, applications for any of the foregoing and all other similar rights recognised in any part of the world.
'Licence Fee' means the total sum specified as such in Schedule 3 and as varied from time to time mutually by the Parties in accordance with Schedule 3.
'Maintenance Fee' means the total sum, charges, rates and other expenses specified as such in Schedule 3 and as varied from time to time mutually by the Parties in accordance with Schedule 3.
'Premises' means the location where the Software is or will be installed and as specified in Schedule 1.
'Purpose' means and refers to the subscriber management and distribution management functions within the organization.
'Single Server' means and includes a computer system in a network that is shared by a pre-defined number of users.
'Single Site' means and refers to only one specific location within an organisation where the Software will be installed without any further duplication.
'Software' means a computer program in object code and procedure statements in machine executable form and all modifications, revisions, new releases, updates and enhancements together with related documentation including user manuals for Use therewith.
'Use' means the installing or copying of any portion of the Software into the Equipment or the processing by the Equipment of the machine instructions and procedure statements provided in the Software or the utilisation of the instructional materials supplied with the Software for the Purpose as defined under Clause 1.6 above.
The Licensor grants to the Licensee and the Licensee hereby accepts a limited, non-exclusive, personal, non-transferable, Single Site, Single Server license and intangible right to Use the Software for solely on and in conjunction with the Equipment and software tools for thePurpose at the Premises of the Licensee during the Term of this Agreement and as specifically described under Schedule 1 hereto, subject to the terms and conditions herein contained (the "License").
The Licensor grants to the Licensee and the Licensee hereby accepts the right to make one backup copy of the Software for safe keeping purposes only. Except as provided under this Clause 2.2 or as otherwise required by law, the Licensee shall not make copies of the Software.
The Licensee may not decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form, save to the extent that such activities cannot be prevented by applicable law. The Licensee may not modify, sell, rent, transfer, resell for profit, distribute or create derivative works based upon the Software or any part thereof.
This Agreement shall be in perpetuity from the Effective Date of this Agreement unless terminated earlier as provided herein subject to payment by the Licensee of License Fee, Maintenance Fee and any other fees/expenses invoiced by the Licensor to the Licensee.
The Licensor shall deliver the Software on a pendrive or CD and install the Software at the Premises of the Licensee at its own cost and expense.
Other additional services may be provided by the Licensor under such terms and conditions and at such rates as the Parties may mutually agree.
The Licensee shall pay to the Licensor an upfront License Fee of INR 40,000/- (Indian Rupees Fourty Thousand only) in accordance with Schedule 3.
The Licensee has an option to avail maintenance services from the Licensor. If the Licensee intends to avail such maintenance services then it shall pay to the Licensor the Maintenance Fee in accordance with Schedule 3.
In addition to the fees and charges described in Schedule 3 hereto, the Licensee shall pay all taxes, including sales tax, value added tax, withholding tax and duties (present and future) of whatsoever nature with respect to this transaction, howsoever levied.
In the event that the Licensor pays or incurs any taxes based on the work performed or products delivered pursuant to Schedule 3, the Licensee agrees to pay or reimburse the Licensor the same.
Subject to Clause 5.6, each payment to be made to the Licensor under this Agreement shall be paid by the Licensee, as specified in Schedule 3, within thirty (30) days of the date of an invoice in respect thereof.
If the whole or any part of an invoice remains outstanding for thirty (30) days or more the Licensee shall pay liquidated damages calculated at the rate of 2% per part or complete month on the overdue balance and in addition the Licensor may at its sole option terminate this Agreement.
In the event of non-payment, the Licensor shall have the right to terminate the Licence hereby granted to the Licensee and this Agreement. The Licensor may repossess any copies of the Software for which payment has not been received by the Licensor and any documentation, data, records or information relating thereto. For such purpose the Licensor or any one or more of its agents or authorised representatives shall be entitled at any time and without notice to enter upon any premises in which the same are or are reasonably believed by the Licensor, to be kept, stored or used.
The Licensor warrants that the Software will operate on the Equipment and will perform in substantial conformance with the functions specified by the Licensor and the Licensor will promptly provide replacements or corrections to any part of the Software which does not so perform, provided that the Licensee has notified the Licensor of such non-performance in writing within a period of thirty (30) days from the date of non performance of the Software. The Licensor shall not however provide such corrections to the Licensee where the Licensor finds in its sole discretion that the non-performance of the Software is caused by Licensee's unauthorised changes or adjustments to the Software, or by incorrect use, or by use on Equipment not performing in accordance with the specification.
NO WARRANTY, CONDITION, UNDERTAKING OR TERM, STRATEGY OR OTHERWISE, IS GIVEN OR TO BE IMPLIED AS TO THE SUITABILITY OF THE SOFTWARE FOR ANY PARTICULAR PURPOSE OR FOR USE UNDER ANY SPECIFIC CONDITIONS, NOTWITHSTANDING THAT SUCH PURPOSE OR CONDITIONS MAY BE KNOWN OR MADE KNOWN TO THE LICENSOR AND ALL SUCH WARRANTIES, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY NULLIFIED AND EXCLUDED.
The Licensor warrants that the Software will function properly only if it is used in conjunction with the Equipment and software tools as described in Schedule 1 hereto. Provided however if the requisite software of any third party goes out of market or is phased out by the owner thereof, the Licensor shall make all endeavours to develop a substitute for the same or in the alternative vary/modify the Software so that it can be used in conjunction with any other software available in the market. The Licensor reserves its right to charge such additional fees as may be thought fit and proper based on a mutual agreement.
The Software is derived from and works in conjunction with third party software and no such third party warrants that the Software assumes any liability regarding use of the Software or undertakes to furnish any support or information relating to the Software.
The Licensor disclaims any warranty, express or implied, that the Software is secure or immune from: (i) access, intrusion, corruption, modification or manipulation by an unauthorised third party; or, (ii) disabling code or computer viruses; or, (iii) program errors resulting from any of the causes specified in (i) and (ii) above (collectively, "Prohibited Activities"). The Licensor shall have no liability whatsoever for such Prohibited Activities and the Licensee, as the user of the Software agrees, upon delivery thereof, to assume the entire risk and liability for Prohibited Activities.
The Licensor warrants to the Licensee that it has all rights necessary to comply with its obligations under this Agreement and is not aware of any claim that the Software infringes the rights (including Intellectual Property Rights) of any third party.
ANNUAL MAINTENANCE SERVICES
The Licensee has an option to avail Annual MaintenanceServices from the Licensor. Annual MaintenanceServices shall mean and include services rendered by the personnel of the Licensor, from time to time, in addition to and without prejudice to what is agreed to be given as a consequence of the License pursuant to these presents. For the sake of clarity such services include software support services, version upgrades, training, etc and as specifically stipulated in Schedule 2 hereto. The rendering of such Annual Maintenance Services shall be also be additionally governed by the terms and conditions as specified under Schedule 2 of this Agreement.
The Licensor agrees to provide to the Licensee and its authorised employees suitable technical and/or user training as per the Training Plan provided in Schedule 5. If the Licensee requires any further training not specifically provided in Schedule 5, such training will be provided by way of Annual Maintenance Services as provided under Clause 8.
INFRINGEMENTS OF THIRD PARTY RIGHTS
The Licensor warrants that it has the right to License the Software to the Licensee for the Use specified in Section 2.
The Licensee warrants that it has not infringed any rights of any third party in communicating it's requirements to the Licensor and would hold Licensor harmless of any claims arising out of such Infringement or alleged Infringement.
If any claim is made against the Licensee, by a third party alleging that the Use of the Software infringes rights belonging to that or any other third party, the Licensee shall inform the Licensor thereof within seven (7) days and shall not take any step in legal proceedings initiated against the Licensee other than the entry of an appearance without Licensor's prior written consent.
The Licensor at its sole discretion may assume at its own expense the responsibility for defending or compromising any such claim in the name of the Licensee, or alternatively may supply a version of the Software which performs in substantial conformance with the functions specified by the Licensee without infringing such claimed rights, whichever alternative chosen by the Licensor shall be Licensee's sole remedy with respect to such proceedings that the third party may have against the Licensor for such potential or actual infringement claim.
The Licensor will have no liability for any claim by the Licensee or another third party, which is based upon the Use of any part of the Software in combination with materials or software not provided by the Licensor.
SURVIVAL OF LICENSE
Termination of this Agreement shall not affect those provisions hereof that by their nature are intended to survive such termination.
Each Party shall indemnify and keep indemnified the other against injury (including death) to any persons or loss of or damage to any property (including the Software) which may arise out of the act, default or negligence of the indemnifying party, his employees or agents and against all claims, demands, proceedings, damages, costs, charges and expenses whatsoever in respect thereof or in relation thereto.
LIMITATION OF LIABILITY
The Licensor and the Licensee agree that the Licensee's sole remedy and the Licensor's sole liability to the Licensee for any breach of this Agreement or any defect in the Software, including breach of warranty, and for any other claim arising in connection with the Software (except for the Licensor's responsibilities to the Licensee set forth in Section 9 hereof), shall be the correction or repair of such breach or defect or the replacement of the defective or non-conforming portion of the Software.
THE REMEDIES PROVIDED IN THIS SECTION AND IN SECTION 10 SHALL BE THE LICENSEE'S SOLE AND EXCLUSIVE REMEDIES FOR ANY AND ALL CLAIMS ARISING IN CONNECTION WITH THE AGREEMENT BETWEEN THE PARTIES, MADE OR SUFFERED BY THE LICENSEE OR OTHER PARTY WHETHER UNDER CONTRACT OR OTHER LEGAL THEORY.
IN NO EVENT SHALL THE LICENSOR BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR TORT DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE LICENSOR OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION ANY SUCH DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE LICENSEE'S USE OF THE SOFTWARE, THE MARKETING, DELIVERY, INSTALLATION, FURNISHING, MAINTAINING OR SUPPORTING OF THE SOFTWARE BY THE LICENSOR, OR THE PERFORMANCE OF THE SOFTWARE, WHETHER OR NOT THE LICENSOR OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Notwithstanding anything contained in this Agreement, the Licensor’s aggregate liability to the Licensee for any damages shall not exceed the amount of License Fees received by the Licensor from the Licensee, during six (6) months preceding the date on which the cause of action had arisen under this Agreement.
OWNERSHIP/TITLE OF THE SOFTWARE
The Parties agree that all proprietary, Intellectual Property Rights, title and interest in and to the Software and all copies thereof belongs exclusively to the Licensor and the Licensee has no rights in or to the Software other than as set out in this Agreement.
Nothing in this Agreement has the effect of assigning or transferring any Intellectual Property Rights in and to the Software.
NON-DISCLOSURE AND CONFIDENTIALITY
Each Party shall treat as confidential and keep secret all information relating to the business of the other and will not disclose to any third party any information learned during the negotiation or term of this Agreement. The provisions of this paragraph shall survive termination of this Agreement provided that they shall not apply to any information, which is in or enters the public domain.
The Licensee shall not disclose the Software or related documentation to other persons, or permit other persons to have access to the Software or related documentation. The Licensee shall use the same degree of care it uses to protect the Licensee's own proprietary information to maintain the confidentiality of the Software.
(a) will Use the Software at the Premises to which access is appropriately limited and will affect security measures to safeguard the Software from theft or from access by persons other than its own authorised servants or agents who Use the Software as herein provided.
(b) will not permit Use of the Software to persons other than persons authorised by the Licensee in the course of its business.
(c) will not, and will instruct its servants and agents not to and will not allow or cause to allow any third party to copy, reverse engineer or otherwise exploit any component of the Software other than as herein provided, nor make any disclosures with reference thereto to any third party.
(d) shall ensure that all copies of any part of the Software made in accordance with the provisions of this Agreement contain a permanently legible reproduction of the Licensor’s copyright notice.
(e) shall permit the Licensor's authorised representatives at all reasonable times to take copies of the Software or any modification thereof in Use at the Premises for the purpose of determining that the provisions of this Agreement are being faithfully performed and the Licensee hereby irrevocably grants authority to the Licensor and its employees and agents to enter such premises for such inspections.
(f) shall ensure that all persons to whom the Software or any part thereof is disclosed are made aware prior to disclosure that the same is confidential and that they owe a duty of confidence to the Licensor.
(g) shall promptly notify the Licensor if it becomes aware of any breach of confidence and give the Licensor all reasonable assistance in connection with the same.
(h) shall always maintain the latest version of the Software supplied by the Licensor at the Premises. The Licensee further agrees not to change or disclose the Software or utilise it for any purpose other than assist the Licensee's technical staff as may be required.
Notwithstanding any provisions herein contained this Agreement may be terminated forthwith by either party by notice in writing from the party not at fault if any of the following events shall occur:
if the other party shall (or shall threaten to) sell, assign, part with or cease to carry on its business or that part of its business relating to the subject matter of this Agreement; or
the control of the other party shall be transferred to any person/s other than the person/s in control of that party at the date hereof; or
the other party commits any material or persistent breach of any term of this agreement and (in the case of a breach capable of being remedied) shall have failed, within thirty (30) days after the receipt of a request in writing from the other party so to do, to remedy the breach (such request to contain a warning of such party’s intention to terminate); or
the other party shall have a receiver or administrative receiver appointed of it or over any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall enter into any voluntary arrangement with its creditors or shall become subject to an administration order.
In the event of any expiration or termination identified in Clause 16.1 above the Licensee will furnish to the Licensor a certificate certifying that all original copies of the Software and related documentation have been returned to the Licensor and all copies made therefrom have been deleted from the Licensee’s computers and Equipment.
The Licensee may terminate this Agreement after full payment of the License Fee with thirty (30) days prior written notice to the Licensor of the Licensee's intent to terminate. However such termination shall not entitle the Licensee to a refund of any part of the License Fee nor shall such termination prevent the Licensor from recovering any balance outstanding.
On the expiration or termination (for whatever cause) of this Agreement, the Licensor shall be entitled to recover possession from the Licensee of all copies of the Software (however amended) supplied to or provided by the Licensee and/or in existence at the time of expiration or termination or require the Licensee to destroy the same and certify on oath that it has done so.
If the Licensee fails to observe or perform any of its obligations hereunder and fails to remedy any such breach within thirty (30) days of notice thereof from the Licensor or if the Licensee shall become insolvent then the Licensor may give a written notice declaring that this Agreement is terminated at such future date as it may designate.
Exercise of the right of termination afforded to either party shall not prejudice legal rights or remedies either party may have against the other with respect to any breach of the terms of this Agreement.
CHANGE REQUEST PROCEDURE
The Licensee may, at any time during the Term, request changes to any part of the Agreement by giving to the Licensor a change request in a form outlined in Schedule 4 hereto ("Change Request").
If the Licensee submits a Change Request to the Licensor, the Licensor must within seven (7) days of receiving the Change Request (or such other period as the Parties agree), provide the Licensee with a change proposal detailing how the Licensor will implement the requested change, the impact of the requested change on any fees payable, proposed changes to resourcing, delivery or milestone dates and Licensor’s ability to meet its other obligations under the Agreement ("Change Proposal").
The Licensor may reject any Change Request from the Licensee only if it can demonstrate to Licensee’s satisfaction that the proposed change would adversely affect the performance, functionality or security of the relevant Software, Licensee’s systems and Equipment or that it is not technically feasible to implement. If the Licensee disputes Licensor’s refusal under this Clause, the dispute will be resolved in accordance with Clause 26 (Dispute Resolution).
The Licensor shall implement the Change Request only after the Licensee approves of the same.
If the whole or any part of the performance by the Licensor or any part of their respective obligations hereunder is prevented or delayed by causes, circumstances or events beyond the control of such party, including delays of third parties in transportation, strikes, labour troubles, electrical failures, floods, fires, accidents, earthquakes, riots, explosions, wars, hostilities, acts of government, custom barriers, or other causes of like character beyond the control of such party, then to the extent such party shall be prevented or delayed from performing all or any part of its obligations hereunder by reason thereof despite due diligence and reasonable efforts to do so notwithstanding such causes, circumstances or events, then such party shall be excused from performance hereunder for so long as such causes, circumstances or events shall continue to prevent or delay such performance.
The Licensee shall not assign, sub-license, distribute, sell, modify or otherwise transfer the License or this Agreement nor any right granted or to be granted hereunder by the Licensor without the prior written consent of the Licensor. However, the Licensor has a right to assign this Agreement in favour of any other party (without obtaining Licensee’s prior written consent).
For a period of two (2) years from the Effective Date of this Agreement the Licensee hereby agrees that it shall not recruit nor employ any personnel employed by the Licensor and introduced in connection with the performance of this Agreement or otherwise discourage such personnel from continuing their employment with the other party.
The Parties have read and understand this Agreement and agree that it constitutes the complete and exclusive statement of the Agreement between them with respect to the subject matter hereof and supersedes all proposals, representations, understandings and prior agreements, whether oral or written, and all other communications between them relating thereto.
No variation of this Agreement shall be binding on either Party unless such variation is incorporated in a revised Schedule to this Agreement and signed by the duly authorised representatives of the Parties.
The headings and captions used herein are inserted only as a matter of convenience and for reference and shall not affect the construction or interpretation of this Agreement.
In the event that any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable or indications of the same are received by either of the parties from any relevant competent authority, the parties shall amend that provision in such reasonable manner as achieves the intention of the parties without illegality, or at the discretion of such provision may be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect.
No delay or failure of either party in enforcing against the other party any term or condition of this agreement and no partial exercise by either party of any right hereunder shall be deemed to be a waiver of any right of that party under this agreement.
Any claim, controversy, difference or dispute between the Parties shall be attempted to be resolved through mutual negotiations within a period of fifteen (15) days from the date of such dispute being subject to negotiations upon mutual agreement.
If the dispute is not resolved by negotiation within the above referred fifteen (15) days, such dispute will be referred to and finally resolved by arbitration at Mumbai in accordance with the Indian Arbitration and Conciliation Act, 1996, for the time being in force, which rules are deemed to be incorporated by reference into this Clause. A sole arbitrator appointed by the Licensor shall conduct the arbitration.
The language of the arbitration will be English. The Parties hereto undertake to keep the arbitration proceedings and all information, pleadings, documents, evidence and all matters relating thereto confidential.
Notwithstanding the above, the Parties shall be entitled to approach the court of appropriate jurisdiction for the grant of any interim or equitable relief.
GOVERNING LAW AND JURISDICTION
This Agreement shall be governed and construed in accordance with the laws of the Republic of India, without regard to its conflict of law principles.
In relation to any legal action or proceedings to enforce this Agreement, the Parties irrevocably submit to the exclusive jurisdiction of the Courts in Mumbai and waive any objection to such proceedings on grounds of venue or on the grounds that the proceedings have been brought in an inconvenient forum.
Any notice required to be given hereunder shall be given by sending the same by registered mail, postage prepaid, return receipt requested and by telex or facsimile, to the addresses as first set out above, or to any subsequent address designated by either Party for the purpose of receiving notices pursuant to this Agreement, and any notice so sent shall be deemed to have been given ten (10) business days after the same was mailed.
Nothing contained or implied in this Agreement creates a joint venture or partnership between the Parties or constitutes one Party the agent or legal representative of the other Party for any purpose.
This Agreement does not limit or restrain the right of the Licensor to execute Agreements for the licensing of the Software or any components thereof with other Licensees.
IN WITNESS whereof these presents have been entered into on the Effective Date set forth below by the duly authorised representatives of the said:
For and on behalf of the Licensor
For and on behalf of the Licensee
|Software Version||Ver 2.0|
|Software Tools||Web Technologies|
|Related Documentation||User Manual|
Any Laptop / Desktop Machine with minimum configuration as:
Intel Core i3
500GB HDD, 8GB RAM
Wifi & Ethernet card, LAN Network
Windows 7 and above. Internet Connectivity.
|Software Purpose||Seva bookings & report generations|
Additional Terms & Conditions
LICENSE FEE AND MAINTENANCE FEE
Software License Fee of INR 40,000/- (Indian Rupees Forty Thousand Only).
The exact cost of upgrade or changes in the software module can be arrived at only upon understanding the exact scope of work.
CHANGE REQUEST FORM
|Change Request Form|
|Contacts for Change Request:|
|Change Request Ref. No:|
|Reason for changes:|
|Importance of change:||Date to be completed:|
|Impact of change:|
|Impact if change not implemented:|
|List any change dependencies:|
|Description of change (please attach any supporting documentation, including resource required):|
|Detail charges and cost of implementing change:|
|Amendments to Contract (including any implementation schedule changes):|
|Licensor's Authorised Signatory:|
|Signed for and on behalf of Licensor by its Authorised Signatory:||Date:|
|Licensee's Authorised Signatory:|
|Signed for and on behalf of Licensee by its Authorised Signatory:||Date:|
a. Software Training will be given on premise / on call