BACKGROUND:
(a) The License Provider is the exclusive and Authorised distributor of the “ MLM” analytical tools and group of models/apps (License Package);
(b) The End User seeks a right to remotely access and use the Licence Package to avail certain services; and
(c) The End User may from time to time require certain services in relation to the products, for which the License Provider is the exclusive distributor, in accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, the License Provider and the End User agree as follows:
This End User License Agreement and its exhibits & attachments collectively, "Agreement", constitutes the entire agreement between Zero Code Learning (OPC) Private Limitedand the End User.
1 Definitions
(a) Abuse means in the End User’s access and use of the Product and Services (i) permitting Users to share passwords and other authentication credentials; (ii) permitting the Use of the Product and Services by any third party entities in a manner that subverts their need to purchase an independent license; (iii) permitting Users to initiate denial of service or attempt to introduce malicious code, (iv) to build applications that interact with, or combine applications with, the Product which applications negatively affect the speed and performance of the Product; (v) for any other commercial purpose or for internal use in a manner that is not consistent with the objective of the purpose of this Agreement; or (vi) in a manner that amounts to tampering with or attempting to tamper with security features of the Product.
(b) Agreement means this Agreement along with the Annexures and the Schedules as the case may be;
(c) Customization means the changes, modifications or additions to the Product which may be made on the request of the End User on mutually agreed terms and conditions.
(d) End User Data means any information, application, file, text or such other material that is uploaded, generated or encountered through use of the Product by End User; Users, or License Provider on the End User's behalf for the purpose of using the Services or facilitating the End User’s use of the Services.
(e) Deliverable means any document, file, information, report or other material that are created by the License Provider for the End User in course of provision of the Services; Documentation shall mean the published user manuals and other documentation that Provider makes generally available from time to time for the Product.
(f) Hosting Servers means those servers and other hardware and software that shall be used to host the Product, End User Data or any other information;
(g) Intellectual Property Right means and includes, without limitation, any patents, copyrights, trademarks, trade secrets, service marks (in each case, whether registered or not), registered designs, database right, design right, moral right or any other property rights that grant similar rights as the foregoing, which exist anywhere in the world, whether registered or not;
(h) Fee means payments made by the End User to the License Provider for the Use of the Product and to avail of the Services, or payments to be made for support, Customization or providing additional services;
(i) Party means either the License Provider or the End User as the context so requires and Parties shall refer to both the Provider and the End User;
(j) Personally Identifiable Information or PII means any data, records or information related to an individual that identifies (directly or indirectly) that individual;
(k) Product means the License Provider enabled proprietary platform including all Customizations, security patches/updates provided from time to time, that is hosted by the Principals of the License Provider on the Hosting Servers and which the End User is permitted to access to avail of the Services in accordance with terms of this Agreement;
(l) Proprietary Information or PI means (i) the Product and any complete or partial copies thereof, (ii) the concepts, techniques, ideas, and know-how embodied and expressed in the Product, including its architecture, structure, sequence, and organization and (iii) any inventions, drawings, performances, software, databases and methodologies in any manner related to the Product and the Services covered under this agreement ;
(m) Services means the services which are provided by the License Provider to the End User through the use and access of the capabilities of the Product and the use of the workflows and algorithms built into the Product, including but not limited to any services that may be provided hereunder;
(n) Term means the period set forth in this Agreement;
(o) Third Party Materials means software, databases or internet resources which is owned by a third party and which the Product interoperates with in performing certain activities underlying certain functionalities;
(p) Use, Using or Used means to directly or indirectly activate the processing capabilities of the Product, and/or execute, access, utilize, employ the Services or display information resulting from such capabilities;
(q) User means an individual who is authorized by the End User to Use the Product pursuant to the license including but are not limited to End User’s employees, End User (current and prospective) consultants, business partners contractors and agents.
(r) Purchase Order issued by the End User or Payment made by the End User against an invoice implies a deemed acceptance of this Agreement.
2 Grant of Right to Use and Intellectual Property Rights
a. In consideration of the End User paying the Fees, the License Provider hereby grants the End User a revocable, non-exclusive, non-transferable, limited right to Use the Product and avail of the Services, during the Term subject to the terms of this Agreement. The End User agrees that the number of Users shall not exceed the number of named Users as may have agreed in prior. The End User shall be solely responsible for ensuring that the Users Use the Product and avail of the Services in accordance with the terms of this Agreement.
b. The License Provider shall enable hosting of the Product on the Hosting Servers. All of the Products and Services are standardized and offered to all the End Users using the License Provider’s hosted model.
c. The Parties agree that the End User shall at all times have and retain the title to and the Intellectual Property Right over the End User Data. Nothing in this Agreement shall be construed to mean assignment of any rights to the License Provider over the End User Data. To the extent that the License Provider has access to any PI, the License Provider shall use and process such PI only for the purposes of this Agreement and only in accordance with the instructions of the End User. The End User will provide the most current User Master data to License Provider on an on-going basis. After the termination of the contract, License Provider will retain the data including PI for maximum period of 12 months, unless the End User specifically requests for shorter period of time for data retention.
d. Nothing set forth in this Agreement shall restrict the License Provider from collecting, storing, analyzing and using information related to the performance and usage of the License Provider’s Product. Such usage data shall be Proprietary Information.
e. The End User acknowledges that exclusive license to all Intellectual Property Rights in the Product and the Proprietary Information are and shall remain with the License Provider. The End User acquires only the right to Use the Products as detailed in this Agreement and does not acquire any ownership rights or title in or to the Proprietary Information.
f. Nothing in this Agreement shall be deemed to (i) restrict or limit the ability of the License Provider from providing access and the ability to Use the Product and the Services to third parties; (ii) restrict or limit the ability of the License Provider from providing access to its Proprietary Information or other materials to any other party for any purpose; or (ii) in any way affect the rights granted by the License Provider to such other parties.
g. The License Provider shall adhere to reasonable security measures deemed by the License Provider to be appropriate for the commercial deployment of the Product and the provision of the Services without limitation, using reasonable measures to secure the End User Data from unauthorized access.
h. End User acknowledges that the End User’s ability to use the Product and Services is subject to certain dependencies and assumptions. In this regard End User shall discharge all obligations as agreed. These obligations are in addition to and not in derogation of any other obligations that the End User has.
i. The End User acknowledges that all Customizations and Deliverables shall be deemed to be a part of the Product and all rights, title and interest in such Customizations and Deliverables vest solely with the License Provider.
3 Prohibited Uses
(a) End User shall not:
(i) Provide any third party (other than the Users) with access to the Product or the Services; or
(ii) Disassemble, decompile or unlock, reverse engineer, or in any manner decode Product for any reason; or
(iii) Re-sell, grant any rights to third parties to the Products or Services, lease, time-share, lend or rent Products or Services; or
(iv) Copy any features, functions or user interfaces/graphics of the Products and/or Services; or
(v) Commit or permit the commission of any Abuse.
(vi) The License Provider shall have the on-going right to monitor Use of the Products and Services to determine the End User’s compliance with this Agreement.
(b) The End User shall be solely responsible for any data, content or information that it or its Users transmits, uses, uploads or stores. End User shall not transmit, uses, uploads or store in violation of any applicable laws.
4 Limited Warranty
End User understands and acknowledges that certain risks are inherent in the transmission of information over the internet. By entering into this Agreement, End User acknowledges that it has reviewed use the security measures deployed by the License Provider, and that it meets the End User’s requirements. The License Provider makes no representation, warranty or covenant that its security measures will be effective and that the License Provider shall have any liability for the breach of its security measures, or the integrity of the systems or Hosting Servers, unless caused by the wilful misconduct or gross negligence of the License Provider or its employees.
The License Provider is not responsible for any failure of the telecommunications network or other communications links utilised by the End User to gain access to and Use the Product and Services. The License Provider does not represent that the Product and Services will be uninterruptedly available or operational or be error free. The License Provider does not represent that the Product and/or the Services meet the End User’s requirements. The End User has independently evaluated the Product and Services and their suitability for the End User’s needs.
The License Provider hereby disclaims and expressly waives all other conditions, representations and guarantees, whether express or implied, arising by law, custom, oral or written statements of the License Provider or third parties including, but not limited to, any warranty of merchantability or fitness for particular purpose or of error-free and uninterrupted use or of non-infringement.
5 Price and payment
a. End User will pay the License Provider the Fees as agreed and such other sums as may be agreed by the Parties in writing from time to time.
b. All invoices raised by the License Provider shall be generated after payment is made by the End User,. Activation of license will be done within 2 days from the date of payment. In any case, the activation shall not precede the payment. . The End User shall neither make nor assert any right of deduction or set-off from amounts invoiced. In the event of any delay in payment, the License Provider shall be entitled to charge interest at 1% per month from the date payment became due to date of actual payment.
c. The End User shall be liable for all transaction taxes on the use of the Product or Services or other services provided under this Agreement (For eg., GST or any other applicable taxes).
6 Refund Policy
The End User shall have the right to cancel the subscription within a period of 1 (One) month from the date of obtaining license, subject to levy of cancellation fee of 1/3rd of the actual subscription amount subject to the appropriation with applicable GST rate.
No refund shall be allowed if cancellation request is raised after the first month of subscription and in such case, the entire amount is liable to be deducted by the License Provider.
Provided that this clause shall be applicable for subscriptions valid for 3 months or beyond and no refunds shall be provided for subscriptions which are less than 3 months.
7 Term & Termination
a. This Agreement shall remain in force while there is a valid and signed Agreement between the parties from the date hereof, but a Party may terminate the Agreement earlier by giving thirty (30) days written notice to the other Party. Provided further that the confidentiality obligations of the Parties shall survive for a period of two (2) years from the date of expiry/termination of this Agreement.
b. Either party may terminate this Agreement, (i) immediately upon the provision of written notice of termination to the other party in the event the other party commits a material breach of this Agreement and fails to fully remedy such breach within thirty (30) days of receiving written notice of such breach or (ii) immediately if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors.
8 Confidential Information & End User Data
a. Both Parties may exchange and/or provide the other Party with access to their confidential and proprietary information (“Confidential Information”). Confidential Information may be disclosed to the receiving party either orally, visually, in writing (including graphic material) or by way of consigned items. Confidential Information of the License Provider includes but is not limited to the Product and Services, Third Party Materials, business plans, details of Fees, business forecasts, financial information, End User lists, development, design details, specifications, patents, copyrights, trade secrets, Proprietary Information, methodologies, techniques, sketches, drawings, models, inventions, know-how, processes, algorithms, software programs, and software source documents.
b. Except as provided herein, the receiving Party agrees to treat the Confidential Information as confidential and shall not divulge, directly or indirectly, to any other person, firm, corporation, association or entity, for any purpose whatsoever, such information, and shall not make use of such information, without the prior written consent of the disclosing Party. The receiving Party may disclose Confidential Information only to its employees or consultants on a need-to-know basis provided that they are bound by written undertakings to protect the confidentiality of the Confidential Information that are no less onerous than under this Agreement.
c. The receiving Party shall take all reasonable security precautions, including precautions at least equal to the measures it takes to protect its own confidential information, to protect the secrecy of the Confidential Information.
d. The End User shall be solely responsible for any End User Data including any approvals, consents or permission to use, transmit or store on the Platform.
9 Limitation of Liability
a. The License Provider shall not be responsible under this Agreement if the Product or Services are not used in accordance with this Agreement; or (ii) if a defect in the Product is caused by the End User’s computing environment, or by interfacing third-party software not authorized by the License Provider.
b. In no event shall either Party be liable to the other, whether in contract, tort (including negligence) or otherwise for any loss of profits, business, contracts, or revenues, loss of operation time, increased costs or wasted expenditure, loss of goodwill or reputation of the other, its employees or any other person acting on their behalf, special, indirect, incidental punitive or consequential damage of any nature whatsoever or howsoever arising out of this Agreement.
c. In no event shall the total aggregate liability of the License Provider for any damage, loss or any other amount under this Agreement or related to this Agreement, whether such liability arises in contract, tort of howsoever, exceed the total fees paid by the End User to the License Provider for the relevant product module usage in question, in the six (6) month period preceding the date the latest claim accrued.
d. In no event shall the License Provider be liable for the insights inferred from models used by the subscriber. All actions done or decisions taken using the tools of the License Provider and outcomes whether in the form of Data, model output and inferences shall be that of the subscriber only and any claims arising out of such decisions shall be lie with the subscriber only.
10 Assignment
Neither Party shall assign its rights, claims or other entitlements under this Agreement without the prior written consent of the other Party, provided that the License Provider may assign this Agreement to another party as a consequence of a merger, amalgamation, investment or corporate restructuring.
11 Arbitration and Governing Law
a. The Parties hereby agree that this Agreement shall be governed by and construed in accordance with the laws of the Republic of India without regard for its conflict of law principles.
b. Without prejudice to the right of the License Provider to seek injunctive or such other appropriate interim relief from a court of competent jurisdiction, any dispute, controversy or claim arising out of or relating to this Agreement, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be exclusively referred to and finally determined by arbitration in accordance with the Arbitration and Conciliation Act, 1996. The tribunal will consist of three arbitrators. The seat and venue of arbitration will be Bangalore. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof. The Parties agree that the arbitration proceedings and the award shall be kept strictly confidential and that obligations under this Section 11 shall survive termination or expiration of this Agreement.
12 Force Majeure
Neither Party shall be liable to the other for failure or delay in the performance of a required obligation, excluding payments due, if such failure or delay is caused by strike, riot, fire, flood, natural disaster, epidemic, pandemic or other similar cause beyond such Party's control, provided that such Party gives prompt written notice of such condition and resumes its performance as soon as possible, and provided further that the other Party may terminate this Agreement if such condition continues for a period of 30 (thirty) days.
13 Waiver
No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions of this Agreement. Further, no waiver shall be effective unless made in writing and signed by an authorised signatory of the waiving Party.
14 Severability
If any of the terms, conditions or provisions contained in this Agreement are determined by any court of competent jurisdiction to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.
15 Notices
All notices and other communications made or required to be given under this Agreement shall be in writing and shall be deemed given upon receipt when sent through (1) certified mail, (2) personal service with receipt acknowledged to the address specified below:
Zero Code Learning (OPC) Pvt. Ltd, 505, Jupiter Suncity, ADS Marg, Powai, Mumbai 400076 or legal@zerocodelearning.com