Software License Agreement
SOFTWARE LICENSE AGREEMENT
Posted as of 07 November 2021
Last updated as of 07 November 2021
This Software License Agreement (hereinafter referred to as “Agreement”) is made effective on the date of purchase of the software product (hereinafter referred to as “Effective Date”)
BY AND BETWEEN
M/s Anyhow Infosystems (OPC) Private Limited, a company incorporated under the Companies Act, 2013, bearing CIN U72900UP2019OPC118448, and having it registered office at “X-3, Sector-12, Noida, Uttar Pradesh- 201301, India”, hereinafter referred to as “Licensor”, which expression shall unless repugnant to the meaning and context include its successors and permitted assigns.
The purchaser of the software product, hereinafter referred to as “Licensee”, which expression shall unless repugnant to the meaning and context include its successors and permitted assigns.
Licensor and Licensee shall collectively be called as “Parties” and individually as “Licensor”/ “Licensee”/ “Party”.
BY EXECUTING THIS AGREEMENT, THE LICENSEE AGREES TO THE TERMS AND CONDITIONS MENTIONED HEREIN. IF THE LICENSEE IS ACCEPTING THIS AGREEMENT ON BEHALF OF AN EMPLOYER OR INSTITUTION, THE EMPLOYER OR INSTITUTION SHALL BE LIABLE FOR ALL ACTS OF THE LICENSEE AND SHALL BE A DEEMED LICENSEE ON BEHALF OF THE LICENSEE.
BY USING THE SOFTWARE PRODUCT, YOU DE-FACTO ARE LEGALLY BOUND BY THE FOLLOWING AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE SOFTWARE AND CONTACT THE LICENSOR. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS NOTICE, USING THE SOFTWARE INDICATES YOUR ACCEPTANCE OF THE TERMS OF THE AGREEMENT.
“Agreement” means the terms and conditions of this Software License Agreement.
“Affiliates” refers to any corporation, association, or other entity that directly or indirectly owns, is owned by, or is under common ownership with either Party, respectively, either currently or during the term of this Agreement. As used in this definition, the terms "owns", "owned", or "ownership" means the direct or indirect possession of more than 50% of the voting securities, or equity in such business entity.
“Authorized User” shall mean any Licensee employee, contractor or supplier. Licensee shall ensure that any person having access to or use of the Software provided to Licensee under this Agreement is subject to an obligation of confidentiality with respect thereto at least as restrictive as the confidentiality obligations outlined in clause 5 of this Agreement.
“Claim” shall mean any liability, suits, claims, actions, proceedings, losses, damages, judgments and reasonable costs.
"Derivative Works" are works developed by Licensee, its officers, agents, contractors or employees, which are based upon, in whole or in part, the Source Code and/or the Documentation and may also be based upon and/or incorporate one or more other preexisting works of the Licensor. Derivative Works may be any improvement, revision, modification, translation (including compilation or recapitulation by computer), abridgment, condensation, expansion, or any other form in which such a preexisting work may be recast, transformed, or adapted. For purposes hereof, a Derivative Work shall also include any compilation that incorporates such a preexisting work.
“Documentation” shall mean the instructions and/or user manuals that describe installation, use, and/or operation of the Software.
"Improvements" shall mean, with respect to the Software, all modifications and changes made, developed, acquired or conceived after the date hereof and during the entire term of this Agreement.
“Intellectual Property Rights” shall mean copyright, patents, designs, trademarks, trade names, goodwill rights and trade secrets.
“License Term” shall be for a limited period specified in the Agreement, unless otherwise provided.
“Software” means and includes the software product purchased and subscribed from the e-commerce Website of the Licensor by the Licensee.
"Source Code" is the computer programming source code form of the Software in the form maintained by the Licensor, and includes all non-third-Party executables, libraries, components, and Documentation created or used in the creation, development, maintenance, and support of the Software as well as all updates, error corrections and revisions thereto provided by Licensor, in whole or in part.
Grant of License: Subject to the terms and conditions of this Agreement Licensor hereby grants Licensee a non-exclusive, non-transferable, revocable license to use the Software for the Term.
The Licensee shall be provided access to the Software, and the Licensee may authorize its employees to access it. Licensee shall be responsible for the use or misuse of the Software by its Authorized Users.
The Licensee understands and acknowledges that the Licensee shall not have the right to sublicense or re-distribute the Software to third parties.
Nothing in this Agreement shall be considered as a grant of title or ownership in the Software to the Licensee.
Scope of license: The Licensor shall enable the Licensee to download the copy of the Software. The Software is intended for the sole use of the Licensee in development of its own website/ mobile app. Some of the Software products provided by the Licensor on the Website comes in two parts, i.e., with a source code and build files. The latter type of product i.e., build files does not contain a source code and the Licensee needs to be well aware of the same after visiting the Software product description on the Website. The Licensee does not have the right to hand over, sell, distribute, sub-license, rent, lease or lend any portion of the Software or Documentation, whether modified or unmodified, to anyone. Licensee should not place the Software on a server so that it becomes accessible via a public network such as the Internet for distribution purposes. The Licensee is not authorized to appoint, or work with, third parties to perform any development services using the Source Code, the source code to Derivative Works and/or the Documentation on behalf of, or working with, the Licensee. Release of Source Code, Derivative Work source code and/or Documentation to any third Party shall be considered as violation of the Agreement, inter-alia entailing forthwith termination and legal action.
Updates/Changes: In the event that the Licensee requires any customization in the Software, the Licensee shall share their confidentiality for their requirement to modify the basic features of the Software and the Licensor shall make the changes in the Software as per the requirement of the Licensee. However, the Licensor shall have the sole right over the updates/changes made by the Licensor in the Software and the Licensor shall have the right to merge the parts of the customization in the existing default Software of the Licensor. The Licensor can sell the updated Software to the Users on the Website.
Obligations of Licensee:
Use of the Software is based on Licensee obtaining and maintaining access to the internet, and all equipment necessary for proper operation of the Software.
Licensee undertakes to prevent unauthorized access to, or use of, the Software and shall notify Licensor immediately of any such unauthorized use or other known breaches of security. Licensee shall report to Licensor immediately and stop immediately any copying or distribution of the Software that is known or suspected by Licensee.
Licensee shall be solely responsible for providing all relevant data required for the proper operation of the Software. Licensee shall be solely responsible for the accuracy, quality, integrity, reliability, appropriateness, and intellectual property ownership or right to use such data.
Licensor is under no obligation and shall not be liable to review such data for accuracy, acceptability or potential liability. Licensee grants to Licensor all necessary licenses in and to such data solely as necessary for Licensor to provide the Software to Licensee.
Term and Termination
The term (“Term”) of this Agreement shall commence from the date of making payment for the Software by the Licensee to this Agreement and shall continue till it is terminated by either Party.
The Licensor may terminate the Agreement without cause in case the Licensee breaches any provisions of the Agreement.
The Licensee shall not be entitled to a refund of any payment made to the Licensor if this Agreement is terminated by the Licensor for any reason.
The Licensor reserves its right to terminate this Agreement in the event that the Licensee makes illegal use of the Software.
Upon termination or expiration of this Agreement, Licensee shall cease all use of the Software, and all related documentation including all confidential information in Licensee’s possession, and shall so certify in writing to the Licensor.
The provisions which, by their nature are meant to survive the termination of this Agreement, shall survive for a period of Two (02) years from the expiry or termination of this Agreement.
The Licensor licenses the Software under this Agreement to the Licensee based on the purchase and subscription plan as chosen by the Licensee.
The Licensee shall pay to Licensor the amount as mentioned on the Website of the Licensor from where the purchase is made, as one-time, upfront fees or monthly/yearly fees as per the subscription plan chosen by the Licensee in consideration for the licenses and rights granted hereunder (hereinafter referred to as the "License Fee").
Once paid, the License Fees shall be non-refundable. It shall be deemed that the Licensee has fully satisfied itself about the Software and has seen the demonstration, and only thereafter has purchased the product. Thus, the License Fees or any part thereof is non-refundable. No claim for refund of the License Fees shall be entertained under any circumstances.
Licensor reserves the right to revise the Fee at its sole discretion with or without notice to the Licensee.
Taxes: Licensee shall be responsible for and shall pay directly, any and all Taxes relating to the performance of this Agreement and the use of the Software.
In the event that the Licensee fails to make payments towards the Fee or the renewal Fee thereof, as and when they become due, the Licensor shall terminate the access of the Software to the Licensee.
The Licensee shall keep all information including but not limited to Software, Documentation or any other documentation, methods, processes, data of the Users shared with respect to the Agreement as proprietary of the Licensor and treat the same as confidential and shall not disclose such information to any third Party, except, disclose pertinent aspects of the Agreement to government and/or regulatory authorities, as required by law.
Licensee shall not disclose, provide or otherwise make available the Software to any person other than the employees of Licensee whose use of or access to the Software is necessary for connection with Licensee’s exercise of its rights granted under this Agreement.
Licensee shall not use the Software for any purpose not expressly permitted by this Agreement.
Licensee shall use all commercially reasonable precautions to protect the confidentiality of the Software, and shall secure from all employees, agents or independent contractors having access to the Software, agreements, at least as protective of the Software as the provisions of this clause 5, to maintain the Software in confidence.
Intellectual Property Rights
Any rights to the Software, its contents and any Documentation provided therewith, including title, ownership rights and Intellectual Property Rights therein shall remain the sole and exclusive property of the Licensor and/or its suppliers or its licensors. Licensee shall not own any Intellectual Property Rights concerning the Software, customization, training material and accompanying Documentation, including Licensor’s confidential information under this Agreement. Licensee shall own all Intellectual Property Rights concerning data and other relevant information provided by Licensee.
Notwithstanding anything contained in this Agreement or otherwise, nothing in this Agreement shall be construed as a transfer in the Intellectual Property Rights of the Licensor to the Licensee.
The Licensee shall not use the Intellectual Property Rights of the Licensor without the prior written consent of the Licensor. Contravention of this provision shall be construed as a material breach of this Agreement.
Disclaimer of Warranties
The Licensee hereby expressly agrees and acknowledges that, except as provided in this Agreement, the Software is provided "as is" and “as available” without any representations, conditions, warranties or covenants whatsoever concerning the Software, including without limitation, any express, statutory or implied representations, warranties or conditions of merchantability, merchantable quality, satisfactory quality or fitness for a particular purpose, or arising otherwise in law or from a course of dealing or usage of trade, all of which are expressly disclaimed and excluded. The Licensor does not warrant that the Software shall be error-free or will perform uninterruptedly.
In no event shall the Licensor be liable to compensate the Licensee or any third Party for any special, incidental, indirect, consequential or punitive damages whatsoever, whether or not foreseeable, and whether or not the Licensee had been advised of the possibility of such damages, or based on any theory of liability, including breach of contract or warranty, negligence or other tortuous action, or any other claim arising out of or in connection with the Licensee’s use of or access to the Software. Licensor reserves the right to assume exclusive control of its defence, and of any matter otherwise subject to indemnification by the Licensee, in which event the Licensee will fully cooperate with the Licensor in connection therewith, and hereby expressly agrees to bear the cost thereof. This indemnity shall survive the termination of this Agreement.
Limitation of Liability
IN NO EVENT SHALL THE LICENSOR BE LIABLE TO THE LICENSEE OR A THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS, BUSINESS INTERRUPTION) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE LICENSEE OR THE THIRD PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
IN ANY EVENT, LICENSOR’S MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT OR UNDER ANY OTHER FORM OR LIABILITY) FOR DAMAGES OR LOSS, HOWSOEVER ARISING OR CAUSED, WHETHER OR NOT ARISING FROM LICENSOR’S NEGLIGENCE, SHALL NOT BE IN EXCESS OF THE PRORATED AMOUNT OF FEES PAID TO LICENSOR HEREUNDER IN PRECEDING THREE (03) MONTHS OF THE EVENT WHICH IS GIVING RIGHT TO SUCH CLAIM. THE FOREGOING LIABILITY CAP SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY OR REMEDY HEREIN.
For all purposes hereof and in the performance of its obligations under this Agreement, the Licensee and its members is and shall remain an independent contractor and nothing in this Agreement shall be deemed or construed to create an employer/employee, joint venture or partnership relationship between the Licensor and the Licensee or any of its employees. Nothing herein shall be deemed or construed to create an employment relationship between the Licensee and any employee, agent or independent contractor of the Licensor. Neither Party shall have any authority to ensure any obligations on behalf of the other Party or to make any promise, representation or contract of any nature on behalf of the other Party. It is also confirmed that no relationship akin to the agency is created between the Licensee and the Licensor. The Licensee shall be an independent contractor under this Agreement.
Governing Law, Jurisdiction and Dispute Resolution
This Agreement shall be governed by and construed under the laws of India. Subject to arbitration clause above, any dispute arising out of or concerning this Agreement shall be submitted to the sole jurisdiction of the courts of law at Noida, Uttar Pradesh, India.
In the event of any dispute arising out of or concerning this Agreement, the Parties shall try and resolve the dispute amicably in good faith through negotiations. In case the dispute is not resolved within a reasonable time, the Parties agree to submit the same for arbitration to a sole arbitrator, appointed by the Licensor. The arbitration proceedings shall be governed by the provisions of the Arbitration and Conciliation Act, 1996. Arbitration proceedings shall be conducted in the English language and the venue shall be Noida, Uttar Pradesh, India. The award of the arbitration proceedings shall be final and binding on the Parties and the Cost of the Arbitration proceedings shall be borne by the Party as specified in the Arbitrator’s award.
General Terms and Conditions
Force Majeure: Without limiting the foregoing, under no circumstances shall Licensor be held liable for any damage or loss due to deficiency in the performance of the Software resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, internet failures, computer equipment failures, telecommunication equipment failures, power failures, internet outage, or any other government regulations, floods, storms, electrical failure, civil disturbances, riots.
Notices: Any and all notices that either Party is required or may desire to give to the other Party hereunder, shall be given by addressing the communication to the address set forth hereinbelow, and shall be served by certified or registered post or through emails. Any change to the below mentioned address shall be informed to other Party in writing, within Thirty (30) days of such change.
No Assignment: Neither Party may assign its rights under this Agreement without the prior written consent of the other Party. The Licensee shall not sub-contract any of its obligations (or part thereof) under this Agreement to any third Party without the prior written consent of the Licensor.
Severability: The provisions of this Agreement shall be deemed severable, and the invalidity or unenforceability of any provision (or part thereof) of this Agreement shall in no way affect the validity or enforceability of any other provision (or remaining part thereof).
Waiver: No delay or failure of either Party in exercising any right and no partial or single exercise of any right shall be deemed to constitute a waiver of that right or any other rights under this Agreement.
Amendment: This Agreement may not be altered or modified except by a written agreement or addendum signed by authorized representatives of the Parties.
Entire Agreement: This Agreement contains the entire agreement and understandings by and between the Parties concerning the covenants herein described, and no representations, promises, agreements or understandings, written or oral, not herein contained shall be of any force or effect.
Acceptable Use Policy (“Policy”)
Licensee agrees to use the Software in accordance with all applicable local, state and national laws, and shall not:
conduct any business or activity or solicit the performance of any activity that is prohibited by law, tortuous, or interferes upon the use of Software by other licensees and Users;
disseminate, display, send, transmit or receive any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening, malicious, or violent, regardless of whether the material or its dissemination is unlawful;
disseminate or transmit unsolicited messages, chain letters or unsolicited commercial email including unintended sending of unsolicited commercial email due to unauthorized access to Licensee’s use of the Software, whether or not the recipient wishes to receive such mailings;
access, send, receive, display, disclose, or store any content in violation of any copyright, right of publicity, patent, trademark, service mark, trade name, trade secret or other intellectual property right or in violation of any applicable agreement, or without authorization;
create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication;
export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of India and its agencies or authorities, or without all required approvals, licenses and/or exemptions;
interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which Licensee does not have the authorization to access or at a level exceeding Licensee’s authorization;
disseminate or transmit any virus, worms, trojan horse or other malicious, harmful or disabling data, work, code or program;
engage in any other activity deemed by Licensor to be in conflict with the spirit or intent of the Agreement or any Licensor policy as examples listed in this Policy are not exhaustive.
Failure to Comply
Failure to comply with this Policy in Licensor’s reasonable judgment may result in the immediate termination of Software, responding to law enforcement requests, or any other action deemed necessary by Licensor in order to protect its network, customer relationships, and commitment to the highest possible quality of Software. Licensor will cooperate with law enforcement in cases where the Software is being used by the Licensee for any suspected illegal activity.
Violations of this Policy are unethical and may be deemed criminal offences. Licensee shall report to Licensor any information Licensee may have concerning instances in which this Policy has been or is being violated. Licensor may at any time initiate an investigation of any use of the Software for compliance with this Policy and Licensee agrees to cooperate.
Intended: Attempts to exploit other devices or software on and off of Licensor’s Software without the permission or implied permission of that Party are not permitted. Violations of system or network security may result in criminal and civil liability. Licensor will cooperate with law enforcement if a criminal violation is suspected. Licensor will limit any traffic from the offending device or network immediately.
Unintended: Licensor will notify Users of an exploited Software being used for potential malicious activity. If the activity is causing severe damage or strain to other Software or networks, Licensor will limit traffic to and from that Software immediately. Otherwise, Licensor will notify the User and give a reasonable amount of time to secure the Software before limiting traffic to and from that Software.