398 lines
20 KiB
Plaintext
398 lines
20 KiB
Plaintext
SOFTWARE LICENCE AGREEMENT
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==========================
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This AGREEMENT is made effective on the date of the purchase of the software
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between Webkul Software Pvt. Ltd.,Company incorporated under the Companies
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Act, 1956 (hereinafter referred to as “Licensor"), and the purchaser of the
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software/ product (hereinafter referred to as "Licensee").
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Preamble
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--------
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Licensor is a web and mobile product based organization engaged in the
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business of developing and marketing software for enterprise level e-commerce
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businesses. It is an ISO and NSR (NASSCOM) certified organization having a
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team of more than 150 creative engineers which come from different
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backgrounds. It has developed more than 700 web extensions and apps in the
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past few years for open source platforms which are used and trusted globally.
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Licensee now wishes to obtain license, and Licensor wishes to grant a license,
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to allow use of the software so purchased in developing the e-commerce
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business website/ mobile app of the Licensee, subject to the terms and
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conditions set forth herein.
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THEREFORE, with the intent to be legally bound, the parties hereby agree as
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follows:
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Agreement
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---------
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1.DEFINITIONS.
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As used in this Agreement, the following capitalized terms
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shall have the definitions set forth below:
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"Derivative Works" are works developed by Licensee, its officers, agents,
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contractors or employees, which are based upon, in whole or in part, the
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Source Code and/or the Documentation and may also be based upon and/or
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incorporate one or more other preexisting works of the Licensor. Derivative
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Works may be any improvement, revision, modification, translation (including
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compilation or recapitulation by computer), abridgment, condensation,
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expansion, or any other form in which such a preexisting work may be recast,
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transformed, or adapted. For purposes hereof, a Derivative Work shall also
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include any compilation that incorporates such a preexisting work.
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"Documentation" is written, printed or otherwise recorded or stored (digital
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or paper) material relating to the Software and/or Source Code, including
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technical specifications and instructions for its use including Software/
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Source Code annotations and other descriptions of the principles of its
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operation and instructions for its use.
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"Improvements" shall mean, with respect to the Software, all modifications and
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changes made, developed, acquired or conceived after the date hereof and
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during the entire term of this Agreement.
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"Source Code" is the computer programming source code form of the Software in
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the form maintained by the Licensor, and includes all non-third-party
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executables, libraries, components, and Documentation created or used in the
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creation, development, maintenance, and support of the Software as well as all
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updates, error corrections and revisions thereto provided by Licensor, in
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whole or in part.
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2.SOFTWARE LICENSE.
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(a)Grant of License. For the consideration set forth below, Licensor hereby
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grants to Licensee, and Licensee hereby accepts the worldwide, non-exclusive,
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perpetual, royalty-free rights and licenses set forth below:
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(i)The right and license to use and incorporate the software, in whole or in
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part, to develop its website/ mobile app (including the integration of all or
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part of the Licensor’s software into Licensee's own software) on one domain (
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Except Joomla modules , listed on store are entitled to be used on unlimited
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domain as per the standard guidelines ) only, solely for the own personal or
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business use of the Licensee. However, the License does not authorize the
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Licensee to compile, copy or distribute the said Software or its Derivative
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Works.
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(ii)The right and license does not authorize the Licensee to share any backup
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or archival copies of the Software and / or the Source Code and Documentation
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on any public internet space including github , stackoverflow etc . The
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Licensee must ensure that the backup are not accessible to any other person
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and the Licensee must prevent copying / use of source code by any unauthorized
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persons.
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(iii)The right and license does not authorize the Licensee to migrate the
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domain license to another domain.
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(iv)Our Joomla extensions are published under the GNU/GPL.
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(b)Scope; Rights and Responsibilities.
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(i)Licensor shall enable the Licensee to download one complete copy of the
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Software.
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(ii)The Software is intended for the sole use of the Licensee in development
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of its own website/ mobile app.
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(iii)Licensee does not have the right to hand over, sell, distribute,
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sub-license, rent, lease or lend any portion of the Software or Documentation,
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whether modified or unmodified, to anyone. Licensee should not place the
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Software on a server so that it becomes accessible via a public network such
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as the Internet for distribution purposes. In case the Licensee is using any
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source code management system like github, it can use the code there only when
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it has paid subscription from such management system.
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(iv) In case the Licensee purchases the module and allow the third party
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development agency to customize as per its need, it is at liberty to do so
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subject to the condition that the Licensee as well as the Agency are not
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authorized to sell the modified version of the extension. Except for the
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required customization purposes, Licensee is not authorized to release the
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Source Code, Derivative Work source code and/or Documentation to any third
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party, which shall be considered as violation of the Agreement, inter-alia
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entailing forthwith termination and legal action.
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(c)Ownership.
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(i)Software and Source Code. All right, title, copyright, and interest in the
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Software, Source Code, Software Modifications and Error corrections will be
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and remain the property of Licensor.
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(ii)Derivative Works. As creation of Derivative Works by the Licensee is
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prohibited, thus, all right, title, copyright, and interest in any and/or all
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Derivative Works and Improvements created by, or on behalf of, Licensee will
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also be deemed to the property of Licensor. Licensor shall be entitled to
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protect copyright / intellectual property in all such Derivative Works and
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Improvements also in any country as it may deem fit including without
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limitation seeking copyright and/or patent protection.
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3.CONSIDERATION.
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(a)Licensee shall pay to Licensor the amount as mentioned on the website from
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where the order is placed, as one-time, upfront fees in consideration for the
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licenses and rights granted hereunder (hereinafter referred to as the "License
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Fee"). The License Fee to be paid by Licensee shall be paid upfront at the
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time of placing the order, and no credit will be allowed under any
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circumstances.
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(b)Once paid, the License Fees shall be non-refundable. The Licensee has fully
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satisfied itself about the Software and has seen the demonstration, and only
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thereafter has placed the order. Thus, the License Fees or any part thereof is
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non-refundable. No claim for refund of the Licence Fees shall be entertained
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under any circumstances.
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4.REPRESENTATIONS AND WARRANTIES.
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(a)Mutual. Each of the parties represents and warrants to the other as
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follows.
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(i)such party is a legal entity duly organized, validly existing and in good
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standing;
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(ii)such party has the power and authority to conduct its business as
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presently conducted and to enter into, execute, deliver and perform this
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Agreement.
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(iii)This Agreement has been duly and validly accepted by such party and
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constitutes the legal, valid and binding obligations of such party
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respectively, enforceable against such party in accordance with their
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respective terms;
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(iv)the acceptance, execution, delivery and performance of this Agreement does
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not and will not violate such party's charter or by-laws; nor require any
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consent, authorization, approval, exemption or other action by any third party
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or governmental entity.
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(b)Licensor warrants that, at the time of purchase of the Software:
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the Software will function materially as set forth in the website or published
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functionality provided by Licensor to customers and potential customers
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describing the Software; and
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Software add-ons, if purchased by the Licensee from the Licensor, will not
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materially diminish the features or functions of or the specifications of the
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Software as they existed as of the execution of this Agreement.
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(c)Title. Licensor represents and warrants that it is the exclusive owner of
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all copyright/ intellectual property in the Software (including the Source
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Code) and has good and marketable title to the Software (including the Source
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Code) free and clear of all liens, claims and encumbrances of any nature
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whatsoever (collectively, "Liens"). Licensor's grant of license and rights to
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Licensee hereunder does not, and will not infringe any third party's property,
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intellectual property or personal rights.
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5.TERM.
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(a)Subject to Licensee's payment obligations, this Agreement shall commence as
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on the date of making payment of the Software by the Licensee to the Licensor,
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and shall continue until terminated by either party.
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(b)The Licensor retains the right to terminate the license at any time, if the
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Licensee is not abiding by any of the terms of the Agreement. The Licensee may
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terminate the Agreement at any time at its own discretion by uninstalling the
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Software and /or by destroying the said Software (or any copies thereof).
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However, the Licensee shall not be entitled to seek any refund of the amount
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paid by it to the Licensor, under any circumstances.
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(c)Survival. In the event this Agreement is terminated for any reason, the
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provisions set forth in Sections 2(a), 2(b), and 2(c) shall survive.
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6.INDEMNIFICATION.
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The Licensee release the Licensor from, and agree to indemnify, defend and
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hold harmless the Licensor (and its officers, directors, employees, agents and
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Affiliates) against, any claim, loss, damage, settlement, cost, taxes, expense
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or other liability (including, without limitation, attorneys' fees) (each, a
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"Claim") arising from or related to: (a) any actual or alleged breach of any
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obligations in this Agreement; (b) any refund, adjustment, or return of
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Software,(c) any claim for actual or alleged infringement of any Intellectual
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Property Rights made by any third party or damages related thereto; or (d)
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Taxes.
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7.LIMITATION OF LIABILITY.
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The Licensor will not be liable for any direct, indirect, incidental, special,
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consequential or exemplary damages, including but not limited to, damages for
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loss of profits, goodwill, use, data or other intangible losses arising out of
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or in connection with the Software, whether in contract, warranty, tort etc. (
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including negligence, software liability, any type of civil responsibility or
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other theory or otherwise) to the Licensee or any other person for cost of
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software, cover, recovery or recoupment of any investment made by the Licensee
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or its affiliates in connection with this Agreement, or for any other loss of
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profit, revenue, business, or data or punitive or consequential damages
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arising out of or relating to this Agreement. Further, the aggregate liability
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of the Licensor, arising out of or in connection with this Agreement or the
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transactions contemplated hereby will not exceed at any time, or under any
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circumstances, the total amounts received by the Licensor from the Licensee in
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connection with the particular software giving rise to the claim.
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8.FORCE MAJEURE.
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The Licensor will not be liable for any delay or failure to perform any of its
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obligations under this Agreement by reasons, events or other matters beyond
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its reasonable control.
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9.RELATIONSHIP OF PARTIES.
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The Licensor and Licensee are independent legal entities, and nothing in this
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Agreement will be construed to create a partnership, joint venture,
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association of persons, agency, franchise, sales representative, or employment
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relationship between the parties. The Licensee will have no authority to make
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or accept any offers or representations on behalf of the Licensor. The
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relationship between the parties is that of Licensor and Licensee only, and
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the rights, duties, liabilities of each party shall be governed by this
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Agreement.
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10.MODIFICATION.
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The Licensor may amend any of the terms and conditions contained in this
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Agreement at any time and solely at its discretion. Any changes will be
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effective upon the posting of such changes on the Portal/ website, and the
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Licensee is responsible for reviewing these changes and informing itself of
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all applicable changes or notices. The continued use of a software by the
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Licensee after posting of any changes by the Licensor, will constitute the
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acceptance of such changes or modifications by the Licensee.
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11.MISCELLANEOUS.
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(a)General Provisions. This Agreement: (i) may be amended only by a writing
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signed by each of the parties; (ii) may be executed in several counterparts,
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each of which shall be deemed an original but all of which shall constitute
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one and the same instrument; (iii) contains the entire agreement of the
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parties with respect to the transactions contemplated hereby and supersedes
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all prior written and oral agreements, and all contemporaneous oral
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agreements, relating to such transactions; (iv) shall be governed by, and
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construed and enforced in accordance with, the laws of India; and (v) shall be
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binding upon, and inure to the benefit of, the parties and their respective
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successors and permitted assigns. Each of the parties hereby irrevocably
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submits to the jurisdiction of the Courts at Delhi, India, for the purposes of
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any action or proceeding arising out of or relating to this Agreement or the
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subject matter hereof and brought by any other party.
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(b)Assignment. Except for the purpose of customization as mentioned in clause
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2(b)(iv) above, Licensee cannot assign, pledge or otherwise transfer, whether
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by operation of law or otherwise, this Agreement, or any of its obligations
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hereunder, without the prior written consent of Licensor, which consent shall
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not be unreasonably withheld.
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(c)Notices. Unless otherwise specifically provided herein, all notices,
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consents, requests, demands and other communications required or permitted
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hereunder:
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(i)shall be in writing;
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(ii)shall be sent by messenger, certified or registered mail/email, or
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reliable express delivery service, to the appropriate address(es) set forth
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below; and
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(iii)shall be deemed to have been given on the date of receipt by the
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addressee, as evidenced by a receipt executed by the addressee (or a
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responsible person in his or her office), the records of the Party delivering
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such communication or a notice to the effect that such addressee refused to
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claim or accept such communication, if sent by messenger, mail or express
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delivery service.
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All such communications shall be sent to the following addresses or numbers,
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or to such other addresses or numbers as any party may inform the others by
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giving five days' prior notice:
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If to Webkul Software Pvt. Ltd.:
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Webkul Software Pvt. Ltd.
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A-67, Sector 63, NOIDA – 201301,
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Uttar Pradesh, India
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If to Licensee:
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At the address mentioned by the Licensee
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(at the time of placing order of generating Invoice)
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(d)Severability. It is the intent of the parties that the provisions of this
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Agreement be enforced to the fullest extent permissible under the laws and
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public policies of India in which enforcement hereof is sought. In
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furtherance of the foregoing, each provision hereof shall be severable from
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each other provision, and any provision hereof which is/ becomes unenforceable
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shall be subject to the following: (i) if such provision is contrary to or
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conflicts with any requirement of any statute, rule or regulation in effect,
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then such requirement shall be incorporated into, or substituted for, such
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unenforceable provision to the minimum extent necessary to make such provision
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enforceable; (ii) the court, agency or arbitrator considering the matter is
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hereby authorized to (or, if such court, agency or arbitrator is unwilling or
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fails to do so, then the parties shall) amend such provision to the minimum
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extent necessary to make such provision enforceable, and the parties hereby
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consent to the entry of an order so amending such provision; and (iii) if
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any such provision cannot be or is not reformed and made enforceable pursuant
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to clause (i) or (ii) above, then such provision shall be ineffective to the
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minimum extent necessary to make the remainder of this Agreement enforceable.
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Any application of the foregoing provisions to any provision hereof shall not
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effect the validity or enforceability of any other provision hereof.
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(e)By purchasing the Software, the Licensee acknowledge that it has read this
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Agreement, and that it agrees to the content of the Agreement, its terms and
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agree to use the Software in compliance with this Agreement.
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(f)The Licensor holds the sole copyright of the Software. The Software or any
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portion thereof is a copyrightable matter and is liable to be protected by the
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applicable laws. Copyright infringement in any manner can lead to prosecution
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according to the current law. The Licensor reserves the right to revoke the
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license of any user who is not holding any license or is holding an invalid
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license.
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(g)This Agreement gives the right to use only one copy of the Software on one
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domain solely for the own personal or business use of the Licensee, subject to
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all the terms and conditions of this Agreement. A separate License has to be
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purchased for each new Software installation. Any distribution of the Software
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without the written consent of the Licensor (including non-commercial
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distribution) is regarded as violation of this Agreement, and will entail
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immediate termination of the Agreement and may invite liability, both civil
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and criminal, as per applicable laws.
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(h)The Licensor reserves the rights to publish a selected list of users/
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Licensees of its Software, and no permission of any Licensee is needed in this
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regard. The Licensee agrees that the Licensor may, in its sole discretion,
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disclose or make available any information provided or submitted by the
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Licensee or related to it under this Agreement to any judicial,
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quasi-judicial, governmental, regulatory or any other authority as may be
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required by the Licensor to co-operate and / or comply with any of their
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orders, instructions or directions or to fulfill any requirements under
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applicable Laws.
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(i)If the Licensee continues to use the Software even after the sending of the
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notice by the Licensor for termination, the Licensee agree to accept an
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injunction to restrain itself from its further use, and to pay all costs (
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including but not limited to reasonable attorney fees) to enforce injunction
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or to revoke the License, and any damages suffered by the Licensor because of
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the misuse of the Software by the Licensee.
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12.ARBITRATION.
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If any dispute arises between the Licensor and the Licensee at any time, in
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connection with the validity, interpretation, implementation or alleged breach
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of any provision of this Agreement, the same shall be referred to a sole
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Arbitrator who shall be an independent and neutral third party appointed
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exclusively by the Licensor. The Licensee shall not object to the appointment
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of the Arbitrator so appointed by the Licensor. The place of arbitration shall
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be Delhi, India. The Arbitration & Conciliation Act, 1996 as amended by The
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Arbitration & Conciliation (Amendment) Act, 2015, shall govern the
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arbitration proceedings. The arbitration proceedings shall be held in the
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English language.
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This document is an electronic record in terms of Information Technology Act,
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2000 and the amended provisions pertaining to electronic records in various
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statutes as amended by the Information Technology Act, 2000. This electronic
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record is generated by a computer system and does not require any physical or
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digital signatures. |