END USER LICENSE AGREEMENT
WorxDesk Ltd (Company) and You (“Licensee”) agree to the terms of this Agreement (as defined below).
By downloading, installing, copying, accessing or using this software, Licensee agrees to this Agreement. If Licensee is accepting this Agreement on behalf of another person or other legal entity, Licensee represents and warrants that Licensee has full authority to bind that person or legal entity to this Agreement. Licensee must ensure that End Users (as defined below) comply with this Agreement and is responsible for End Users’ compliance with or breach of this Agreement. If Licensee does not agree to this Agreement, Licensee must:
BY USING THIS SOFTWARE AS A SERVICE (“SERVICE”), 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 SERVICE AND CONTACT THE COMPANY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS NOTICE, USING THE SERVICE INDICATES YOUR ACCEPTANCE OF THE TERMS OF THE AGREEMENT.
- “Affiliates” refers to any corporation, authorized agencies and officials, association, or other entity that directly or indirectly owns, is owned by, is under common ownership or working with either Party, respectively, either currently or during the term of this As used in this definition, the terms “owns”, “owned”, or “ownership” mean the direct or indirect possession of more than 50% of the voting securities, or equity in such business entity.
- “Claim” shall mean any liability, suits, claims, actions, proceedings, losses, damages, judgments and reasonable costs.
- “Documentation” shall mean the instructions and/or user manuals that describe installation, use, and/or operation of the Service.
- “Intellectual Property Rights” shall mean copyright, patents, designs, trademarks, trade names, goodwill rights and trade secrets.
- “EULA” stands for End User License Agreement.
- “License Term” shall be for a limited period specified in the Agreement, unless otherwise provided.
- “Software” means and includes the instructions, programs and the software, called WhatSales, WhatSales Mobile Apps, including all extensions, additions, modifications, upgrades, updates and enhancements thereto.
- “Authorised User” shall mean any Licensee employee, officials, Authorised Agencies, contractor or supplier. Licensee shall ensure that any person having access to or use of the Service provided to Licensee under this Agreement is subject to an obligation of confidentiality with respect thereto at least as restrictive as the confidentiality obligations set forth in clause 6 of this Agreement.
The Service (including any enhancements, upgrades or updates) shall be transmitted by the Company to the Licensee through a system software, and mobile application.
TERM AND TERMINATION:
The term (“Term”) of this Agreement shall commence from the date of execution of this Agreement and shall continue till it is terminated by either Party.
Either party may terminate the Agreement at any time by ceasing the use of the Software and promptly destroying and deleting all copies, including any documentation. The Licensee shall not be entitled to any refund of the license fee.
After termination, Licensee’s account information, order details and service requests shall be rendered at any given time at Company’s discretion, provided that we provide Licensee with the reason for any alteration.
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.
Grant of license:
Maintenance & Support:
Licensee acknowledge that while the Company may, at its sole discretion, provide maintenance and support for the Service from time to time, the Company shall have no specific obligation whatsoever to furnish such services to you.
Licensee hereby grants Company the right to use the name and service marks of Licensee in its marketing materials or other oral, electronic, or written promotions, which shall include naming Licensee as a Licensee of Company and a brief scope of services provided. Any use of Company logos or links on Licensee’s Product must be approved in writing by Licensee. Either party may elect to issue a press release related to this Agreement. In doing so, any release shall be approved by the other party and such approval shall not be unreasonably withheld.
In the event that the Company launches new updates/upgrades of the Service, the Licensee may subscribe to such upgrades/updates. In case Licensee chooses not to update/upgrade, certain features or functionality shall not be accessible to such Licensee. In the event that the features made available through the Service require substantial modifications or additional services then the Licensee shall be required to pay charges as intimated by the Company from time to time.
Obligations of Licensee
FEE AND PAYMENT
The Company licenses the Service under this Agreement to the Licensee for an annual subscription fee (“Fee”) as set out by the Company on the Website. Company 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 Service.
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 Company shall terminate the access of the Service to the Licensee.
Payment: The Fees shall be invoiced in advance of each covered year, and Licensee shall pay each such invoice within thirty (30) days of Licensee’s receipt thereof. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Licensee will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Company to collect any amount that is not paid when due. Failure of Licensee to make any payment of Fees when due, shall be deemed a material breach of this Agreement and Company shall have the right (in addition to any other rights or remedies it may have) to immediately and without notice suspend the Services (in whole or in part). All payments shall be made in Indian Rupees and shall not be subject to set-off for any claims against Company.
The Licensee shall keep all information including but not limited to Service, Documentation or any other documentation, methods, processes, data of the system shared with respect to the Agreement as proprietary of the Company 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 Service to any person other than the employees, Officials and authorized agencies of Licensee whose use of or access to the Service is necessary in connection with Licensee’s exercise of its rights granted under this Agreement.
Licensee shall not use the Service for any purpose not expressly permitted by this Agreement
Licensee shall use all commercially reasonable precautions to protect the confidentiality of the Service, and shall secure from all employees, officials, authorized agencies, agents or independent contractors having access to the Service agreements, at least as protective of the Service as the provisions of this clause 6, to maintain the Service in confidence.
INTELLECTUAL PROPERTY RIGHTS
Any and all rights to the Service, 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 Company and/or its suppliers or its affiliates. Licensee shall not own any Intellectual Property Rights with respect to the Service, customization, training material and accompanying Documentation, including Company’s confidential information under this Agreement. Licensee shall own all Intellectual Property Rights with respect to 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 Company to the Licensee.
The Licensee shall not use the Intellectual Property Rights of the Company without the prior written consent of the Company. Contravention of this provision shall be construed as a material breach of this Agreement.
DISCLAIMER OF WARRANTIES
Licensee hereby expressly agrees and acknowledges that, except as provided in this Agreement, the Service is provided “as is” and “as available” without any representations, conditions, warranties or covenants whatsoever with respect to the Service, 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 Company does not warrant that the Service shall be error free or will perform in an uninterrupted manner.
Licensee shall, defend, indemnify and hold harmless Company from any third party claims arising out of:
Misuse of the Service;
Breach of terms of this Agreement;
Breach of applicable laws;
This indemnity shall survive the termination of this Agreement.
LIMITATION OF LIABILITY
- IN NO EVENT SHALL THE COMPANY 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 SERVICE, 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, COMPANY’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 COMPANY’S NEGLIGENCE, SHALL NOT BE IN EXCESS OF THE PRORATED AMOUNT OF FEES PAID TO COMPANY 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
During the Term of this Agreement and for a period of 2 (two) years after the termination of this Agreement. Licensee shall not engage in any activity that competes with the business, proposed business or business interests of Company, and Licensee will not assist any other person or entity in doing so, without Company’s prior written consent.
In the event of any dispute arising out of or in relation to 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, mutually appointed by the Parties. In the event that the Parties cannot agree upon a sole arbitrator, each Party shall appoint an arbitrator and the two arbitrators shall mutually appoint the third presiding arbitrator.
GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed under the laws of England and Wales. Subject to arbitration clause above, any dispute arising out of or in relation to this Agreement shall be submitted to the sole jurisdiction of the courts of law at England and Wales.
Without limiting the foregoing, under no circumstances shall Company be held liable for any damage or loss due to deficiency in performance of the Service 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 at the start of this Agreement, and shall be served by certified or registered post. Any change to the abovementioned 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 Company
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 with respect to the covenants herein described, and no representations, promises, agreements or understandings, written or oral, not herein contained shall be of any force or effect.