SOFTWARE LICENSE AGREEMENT
NOTE: By downloading the Software, Customer is indicating that Customer has read and understood this Software License Agreement and accepts and agrees to its terms and conditions. If Customer does not agree with the terms and conditions of this Agreement, do not download or use the Software.
ARTICLE I: DEFINITIONS; TERM
Article I.1: Definitions
For purposes of this Software License Agreement (“Agreement”), the following terms shall mean:
Wikpro Pvt. Ltd.
The Licensee of the software
Wikpro Pvt. Ltd.
The licensor of the Software.
The party disclosing Confidential Information.
The written documentation for the Software (including any Updates or Support Modifications) provided by Wikpro Pvt. Ltd. to Customer.
The date the Software is downloaded by Customer.
Reproducible problems with the operation of the Software that prevent the Software from performing in accordance with the material requirements of the Documentation.
The applicable license fee will be as set forth at our pricing page
Period of Coverage
The time periods in annual increments during which Support (as defined in Article III) is available under this Agreement.
The party receiving Confidential Information.
The Open-School software. Software shall include updates and replacements to Open-School provided through any of the following pursuant to Support: Support Modifications, Software Updates and/or Software Upgrades.
Revisions of the software that do not add new functionalities. Updates generally do not include the addition of functionality.
New software incorporating revisions of the Software that provide a substantial change in or addition to the functionality of the Software. Upgrades shall not include products designated, marketed and separately listed on the company websites as new products.
Has the meaning defined in Article III below.
Software changes to be integrated with the Software to correct any Errors therein, but that do not alter the basic functionality of the Software or add new functions thereto.
Article I.2: Term
The term of this Agreement shall commence on the Effective Date and shall continue in effect indefinitely unless terminated sooner pursuant to the terms set forth herein.
Article II: SOFTWARE LICENSE (“LICENSE”)
Article II.1: License Grant.
A.Wikpro Pvt. Ltd. grants to Customer a non-exclusive, non-transferable license to install, download and use ONE copy of the Software for One installation, as follows:
i. for its internal business purposes, one copy of the Software may be downloaded to only one computer or workstation to be accessible at a single website location (URL);
ii. if Customer desires to move the Software to a different computer or workstation, it must provide Wikpro Pvt. Ltd , written notice prior to the movement to a new computer or workstation except in emergency situations, in which case immediate post-move notification is required, and must delete the Software from the old computer or workstation;
iii. Only by Customer for its internal use, and the Software is not transferable from Customer to any parent, subsidiary, affiliated entity or third party except by written agreement between the parties;
iv. only for Customer’s benefit and not for the benefit of any third party, including without limitation, commercial timesharing or service bureau or other rental or sharing arrangements, data processing or management information or services;
v. only in the country in which the Software is first installed and may only be moved to another country with the prior written permission of company;
B. Customer may not:
i. Use the Software in contravention of Section II.1(A) above;
ii. Reproduce or otherwise make copies of any portion of the Software
iii. Create derivative works based upon the Software or any part of the Software, or modify the Software;
iv. Distribute, sell, assign, license, sublicense, rent, lease, lend out or otherwise Transfer any part of the Software, or permit any third parties to do so;
v. Remove the patent, copyright, trade mark, trade secret or other proprietary protection legends or notices that appear on or in the Software; or
Article II.2: Ownership
Company retains all title, copyright and other proprietary rights in the Software and any modifications, enhancements or changes thereto, including but not limited to any Support Modifications, Software Updates and Software Upgrades, and any feedback or suggestions provided by Customer with respect to the Software or with respect to any such modifications, enhancements or changes thereto. Customer does not acquire any rights, express or implied, in the Software, other than those expressly specified in this Agreement.
Article II.3: Wrongful Possession or Access
Upon knowledge of any unauthorized possession, use of, or access to, any Software, Customer shall promptly notify Company and furnish Company with full details of such knowledge, assist in preventing any recurrence thereof, and cooperate with Company (if unauthorized use is through no fault of Customer, at Company’s expense) in any litigation or other proceedings reasonably necessary to protect the rights of Company.
Article II.4: Trademarks
Customer may not use Company’s name or trademarks without the prior written permission of Company. Company may use Customer’s name, logo and/or trademarks to identify Customer as a customer of Company.
Article III: SUPPORT AND UPDATE SERVICES (“SUPPORT”)
Article III.1: Support Services
Company shall provide annual Support in accordance with Company’s Support policies in effect at the beginning of each annual renewal of the Period of Coverage. Support shall include, without limitation, access to all Software Updates, E-mail, and Telephone and Chat support. In addition, Support will not apply in the event of: (i) any misuse, improper use, alteration, or damage of the Software; (ii) any version of the Software not made or authorized in writing by Company; or (iii) the combination of the Software with other programming or equipment to the extent such combination has not been approved in writing by Company.
Article III.2 Support Term
The Period of Coverage begins one year following the Effective Date. Within thirty (30) days of the expiration of a Period of Coverage, Company shall notify Customer via email of the applicable Support Fees for the succeeding year and upon payment by Customer of the applicable Support Fee, at Customer’s option, Customer’s subscription to Support shall be extended and renewed for an additional period of one (1) year at the then-current fees.
Article IV: GENERAL
Article IV.1: Establishment and Maintenance of Accounts
A. Customer understands that Customer must register and establish an account with Company in order for Customer to license, purchase download and use the Software and receive Support. Customer represents and warrants to Company that it will provide, and maintain and update promptly when necessary, true, accurate, complete and up-to-date information (“Account Data”) when prompted during the registration process. If Company believes in its reasonable business discretion that Account Data provided by Customer is inaccurate, incomplete and/or not up-to-date, Company has the right, in its sole and absolute discretion, to (i) suspend or terminate Customer’s account, (ii) suspend or terminate this Agreement, and/or (iii) reject any current or future access to and use of the Software and refuse to provide Support unless and until the affected Account Data is corrected and/or made complete.
B. Customer understands that it is solely responsible for maintaining the confidentiality and security of account passwords, account details, login information and any other security or access information used by Customer to access the Software (collectively, “Login Information”), as well as preventing unauthorized access to or use of the information, files and/or data that Customer houses or uses in or with the Software.
C. Customer understands and acknowledges that Company assumes that any communication it receives through use of Account Data was received and/or authorized by Customer.
Article IV.2: Mutual Nondisclosure
A. The parties agree that all information, including without limitation the Software and Documentation, and all information concerning either party’s business, including without limitation, information pertaining to either party’s marketing plans, finances, research and development, information technology, competition, customers and personnel data exchanged by the parties under this Agreement and reasonably to be considered confidential by the disclosing party under the circumstances (collectively, “Confidential Information”) shall be maintained in confidence by the receiving party, and the receiving party shall use the Confidential Information of the other party only as authorized by this Agreement and for no other purpose (it being understood, however, that either party may disclose the Confidential Information to its employees and contractors who have a need to know, provided that same are subject to substantially similar obligations of confidentiality as those herein). In the event the Confidential Information is disclosed visually or orally, the information shall be identified as confidential at the time of such disclosure.
B. Each party further agrees to take the same measures it uses to protect its own Confidential Information, to prevent the unauthorized disclosure and use of the Confidential Information of the other party to third parties (except as permitted herein), and to prevent such unauthorized disclosure by its employees, agents and independent contractors who are otherwise permitted access to the information.
C. The obligations of Recipient with respect to any particular portion of Confidential Information shall terminate or shall not attach, as the case may be, when such information:
i. was in the public domain at the time of Discloser’s communication thereof to Recipient;
ii. entered the public domain through no fault of Recipient subsequent to the time of Discloser’s communication thereof to Recipient;
iii. was in Recipient’s possession free of any obligation of confidence at the time of Discloser’s communication thereof to Recipient;
iv. was independently developed by Recipient as demonstrated by written records; or
v. is required to be disclosed by court or government order and Discloser has been given notice of such order
D. The parties agree that a breach of the confidentiality obligations by Recipient shall cause immediate and irreparable monetary damage to Discloser and shall entitle Discloser to injunctive relief in addition to all other remedies.
Article IV.3: Disclaimer of Warranties
THE SOFTWARE AND SUPPORT IS PROVIDED ON AN “AS-IS” BASIS, WITHOUT ANY WARRANTY OF ANY KIND. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AS TO THE QUALITY, SUITABILITY, AVAILABILITY OR ADEQUACY OF THE SOFTWARE, AND COMPANY MAKES NO EXPRESS, STATUTORY OR IMPLIED REPRESENTATIONS OR WARRANTIES, AT LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANT-ABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, NO ENCUMBRANCES AND WARRANTIES ARISING THROUGH COURSE OF DEALING OR USAGE OR TRADE, AND COMPANY HEREBY EXPRESSLY DISCLAIMS ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES.
Article IV.4: Infringement Indemnity
A. If Customer is prevented from using the Software due to an actual or claimed infringement of any U.S. patent, copyright or other intellectual property right (that is not as a result of (i) any misuse, improper use, alteration or damage of the Software by Customer; (ii) any version of the Software not made or authorized in writing by Company; (iii) the combination of the Software with other programming or equipment to the extent such combination has not been approved in writing Company; or (iv) any version of the Software other than the then current version), Company may remedy the infringement by:
i. Procuring for Customer, at Company’s expense, the right to continue to use the Software(s);
ii. Replacing or modifying the Software(s) at Company’s expense so that the Software(s) become non-infringing, but substantially equivalent in functionality; or
iii. In the event that neither (i) or (ii) are reasonably feasible, terminating the Agreement as to the infringing Software and returning any License Fees paid by Customer for the infringing Software(s).
B. This Section states Company’s entire obligation to Customer with respect to any claim of infringement.
Article IV.5: Payment
A. LICENSE FEES. In consideration for the License granted in Article II, Customer agrees to pay to Company the License Fee.
B. SUPPORT FEES. In consideration for the Support to be provided hereunder, Customer shall pay the Support Fee. The first year of Support is free of cost when clubbed with the License Fee. Thereafter, Support is discretionary. Company may increase Annual Support Fees for renewal upon written notice to Customer.
C. TAXES. The fees listed in this Agreement do not include taxes. If Company is required to pay any sales, use, property, excise, value added, gross receipts, withholding or other taxes levied on the Software, Services or Support under this Agreement or on Customer’s use thereof, then such taxes shall be billed to and paid by Customer. This Section does not apply to taxes based on Company’s net income, franchise taxes or Company’s employer contributions and taxes.
D. PAYMENT PROCESS. Customer understands that Company uses a third party paying agent to process all payments by International purchasers. Customer understands that until payment is received and verified by the paying agent, Customer shall not be permitted to download the Software or receive Support.
E. All payments made hereunder are nonrefundable, except for relief to which Customer may be entitled under the Infringement provisions of this Agreement. Customer may not withhold or set off any amounts due under this Agreement. Failure to pay any fee when due shall constitute a material breach of this Agreement.
Article IV.6: LIMITED LIABILITY
EXCEPT FOR a) VIOLATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS OR THE USE RESTRICTIONS HEREIN, b) FAILURE TO COMPLY WITH THE MUTUAL NONDISCLOSURE PROVISION, OR c) THE INFRINGEMENT AND OTHER INDEMNITY PROVISIONS CONTAINED HEREIN, IN NO EVENT SHALL COMPANY OR COMPANY’S THIRD PARTY SUPPLIERS BE LIABLE TO CUSTOMER FOR A MONETARY AMOUNT GREATER THAN THE AMOUNTS PAID PURSUANT TO THIS AGREEMENT FOR THE SOFTWARE CAUSING THE LIABILITY AND (B) IN NO EVENT SHALL EITHER PARTY OR COMPANY’S THIRD PARTY SUPPLIERS BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OR INJURIES TO EARNINGS, PROFITS, DATA OR GOODWILL, OR FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY PERSON OR ENTITY WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF ANY OTHER REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
The provisions of this Agreement allocate the risks for the Company and Customer. Company’s pricing reflects this allocation of risk and the limitation of liability specified herein.
Article IV.7 Recruiting
Customer acknowledges that Company’s employees and contractors are critical to its business. Therefore, Customer agrees not to knowingly solicit any of Company’s employees or contractors without Company consent and for a period of twelve (12) months following that employee’s or contractor’s last date of employment or engagement by Company. The parties further agree that in the event of any actual or threatened breach of any of the provisions of this section, Company shall be entitled (in addition to any and all other rights and remedies at law or in equity for damages or otherwise, which rights and remedies are and shall be cumulative) to specific performance, a temporary restraining order, or an injunction to prevent such breach or contemplated breach.
Article IV.8: Termination
If either party materially breaches this Agreement, the other party may give written notice of its desire to terminate and the specific grounds for termination and, if such default is capable of cure and the party in default fails to cure the default within thirty (30) days of the notice, the other party may terminate this Agreement. If such default is incapable of cure, the other party may terminate this Agreement immediately upon written notice of its desire to terminate. Upon termination, the License to use the Software shall be immediately revoked and all Software and supporting materials will be returned to Company or destroyed and documentation supplied to Company certifying destruction. Unless this Agreement is terminated pursuant to this paragraph, it shall continue in full force and effect. Sections 2.01(b), 2.02 – 2.04, 4.01, 4.02, and 4.05 - 4.10 shall survive any termination of this Agreement.
Article IV.9: General
A.WAIVER. The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach. No amendments, modifications or supplements to this Agreement shall be binding unless in writing and signed by the parties.
B. NOTICES. All notices shall be in writing and delivered: personally; by email; by overnight delivery service with a nationally recognized service that maintains a record of delivery; or sent by certified mail, postage prepaid, return receipt requested, to the address as notified by one party to the other party, and such notice shall be deemed to be made (a) if by email, when it is sent and confirmed, (b) if delivered personally or by overnight mail, when received and (c) if mailed, on the fifth (5th) day after such mailing. To expedite order processing, Customer agrees that Company may treat documents faxed by Customer to Company as original documents. However, either party may require the other to exchange original signed documents.
C. GOVERNING LAW. The construction of this agreement and the adjudication of any dispute arising out of this agreement, or having reference to any transaction effected in furtherance of this agreement, shall be strictly and only be carried out in accordance with the internal laws prevalent in the State of Kerala, India. It is expressly understood that the application of the internal laws of State of Kerala will exclude the application of laws prevalent in any other jurisdiction to the matters pertaining to this agreement. This agreement further expressly excludes the application of the UN Convention on Contracts for the International Sale of Goods and other international covenants and treaties governing international trade.
D. DISPUTES. (a) Any dispute or difference arising out of or in connection with this contract, including any question regarding its existence, operation, termination, validity or breach thereof shall be referred to and finally resolved by arbitration as per the Arbitration & Conciliation Act, 1996, enacted by the Parliament of India, and shall be conducted by the Indian Institute of Arbitration & Mediation, Kochi(India)in accordance with their Arbitration Rules ("IIAM Arbitration Rules", as made available in http://www.arbitrationindia.com/pdf/rules_arbitration.pdf ) for the time being in force which rules are deemed to be incorporated by reference to this clause.
(b) By virtue of the arbitration clause in sub-clause(a) above, the contracting parties are absolutely precluded from moving any court, tribunal or any other forum exercising judicial or quasi-judicial functions in any jurisdiction in relation with the disputes arising out of this agreement and the jurisdiction of all courts stand specifically barred by the same. Provided that the jurisdiction of the courts in India may be invoked for the limited purpose of appointment of arbitrator as per Arbitration and Conciliation Act 1996, upon failure of Indian Institute of Arbitration and Mediation to initiate arbitration proceedings as per sub-clause(a) above.
(c) The invocation of arbitration clause under sub-clause (a) above shall be preceded by service of notice by the aggrieved party calling upon the other party to redress the grievance(s) within thirty days from the date of receipt of the same and only upon the failure of the other party to redress or respond or to the grievances within the said period, the arbitration clause could be invoked.
E. ASSIGNMENT. This Agreement is not assignable or otherwise transferable (including by operation of law, merger, or other business combination) by Customer without the prior written consent of Company ; provided, however, no consent of Company shall be required for a transfer or assignment by Customer to any Affiliate of Customer or to any person or entity which acquires all or substantially all of the equity or assets of Customer (including by operation of law, merger, or other business combination), provided that, in order for such assignment to be effective, Customer shall provide Company with written notice of such assignment or transfer as soon as practicable following the closing of such assignment or transfer.
F. INDEPENDENT CONTRACTORS. The parties are independent contractors. Nothing contained in this Agreement will be construed or implied to create an agency, partnership or joint venture between the parties. At no time will either party make commitments or incur any charges or expenses for or on behalf of the other party.
G. THIRD PARTY BENEFICIARIES. This Agreement is intended to be for the sole and exclusive benefit of the parties hereto, Company’s suppliers, and their respective successors and permitted assigns. Nothing contained in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy, or claim under or in respect to this Agreement or any provision herein contained.
H. SEVERABILITY. If any provision or portion thereof of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in full force.
I. ENTIRE AGREEMENT. This Agreement, including its terms and conditions and its attachments and amendments, is a complete and exclusive statement of the agreement between the parties, which supersedes all prior or concurrent proposals and understandings, whether oral or written, and all other communications between the parties relating to the subject matter of this Agreement.