Terms & Conditions
SOFTWARE LICENSE AGREEMENT
IQLECT SOFTWARE SOLUTIONS PRIVATE LIMITED, a company incorporated under the Companies Act, 1956, having its registered office at # 887, Ground Floor, 18th Main, 5th A Cross Rd, Koramangala, 6 Block, Bengaluru, Karnataka 560095, India (hereinafter referred as "Licensor");
You may access and use our Cloud Services in accordance with this Agreement. The service level agreements we currently offer with respect to Ampere, BangDB Cloud Services are located here
WHEREAS:
A. The Licensor has developed and owns all rights in and to the Software (defined hereinafter);
B. The Licensee is engaged in the business of [mention the nature of Licensee's business] (“Business”) and wishes to access and use the Software for its Business purposes and has requested the Licensor to grant to the Licensee a License (defined later) to use the Software for said purposes;
C. The Licensor is agreeable to grant to the Licensee a license to access and use the Software, subject to and in accordance with the terms & conditions and limitations detailed in the Agreement.
NOW THE PARTIES HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS
Unless the context otherwise requires, when used in this Agreement:
1.1. “Agreement” means this software license agreement together with any schedules, annexures and exhibits attached to it;
1.2. “Applicable Law” means any statute, law, regulation, ordinance, rule, judgment, notification, order, decree, bye-law, permits, licenses, approvals, consents, authorizations, government approvals, directives, guidelines, requirements or other governmental restrictions, or any similar form of decision of, or determination by, or any interpretation, policy or administration, having the force of law of any of the foregoing, by any authority having jurisdiction over the matter in question, whether in effect as of the date of this Agreement or thereafter;
1.3. "Confidential Information" means: (i) with respect to the Licensor, the Software and Documentation, any other third-party software licensed with or as part of the Software, benchmark results, manuals, program listings, data structures, flow charts, logic diagrams, functional specifications; (ii) the concepts, techniques, ideas, and know-how embodied and expressed in the Software and (iii) information reasonably identifiable as the confidential and proprietary information of a Party, excluding any part of the information which: (a) is or becomes publicly available through no act or failure of the other party; or (b) was or is rightfully acquired by the other party from a source other than the disclosing party prior to receipt from the disclosing party; or (c) becomes independently available to the other party as a matter of right.
1.4. “Documentation” means and includes any user guide, manuals, technical or functional specifications and other similar materials provided to Licensee by the Licensor on any media in connection with the license to the Software contemplated in this Agreement.
1.5. "Use" means to load, activate the processing capabilities of the Software, execute, access, utilize, store, employ the Software, or display information resulting from such capabilities solely and exclusively for the purpose of the Licensee's Business.
1.6. “Services” means the services detailed in sla (https://bangdb.com/sla) here to, to be provided by the Licensor to the Licensee during the Term.
1.7. “Software” means the software platform in the name of 'Ampere, BangDB' developed and owned by the Licensor, as described in Annexure I hereto, and includes all rights, title and interest (including without limitation any and all patents, copyrights, trademarks, moral rights, design rights, database rights, trade names, service marks and other proprietary rights), source codes, object codes, concepts, designs, know-how, improvements, works of authorship, processes, formulae, user interface, business and product names, logos, industrial models, processes, designs, databases, methodologies, software, computer programs, technical information, engineering and technical drawings, maintenance releases or updates and the Documentation related thereto.
1.8. “Support” means the basic support services offered by the Licensor relating to the Software.
1.9. “Updates” are related to content and include, without limitation, updates for the Software which are made generally available to the Licensor's customer base which are not separately priced or marketed by the Licensor.
2. EFFECTIVENESS
The Agreement shall be effective from the Effective Date and shall, unless terminated earlier in accordance with provisions herein, continue to remain valid and operational till the expiry of the Term (defined later).
3. LICENSE
3.1 In consideration of the License Fee mentioned in Clause 5 below, the Licensor hereby grants to the Licensee a limited license to Use the Software for the Term (“License”).
3.2 The License to the Software granted by the Licensor to the Licensee under this Agreement shall be: (a) a non-exclusive license; (b) a limited license granted for Use only in connection with the Licensee's lawful Business; (c) revocable in accordance with the provisions of this Agreement; (d) non-transferable and non-assignable whether directly or indirectly; (e) valid and limited to the Term.
3.3 The Software, the License to which is granted pursuant to this Agreement, will be provided to the Licensee in object code form only.
3.4 The Software is licensed not sold. The Licensor expressly reserves all rights and other than the limited license in the Software being granted pursuant to this Agreement. The License to the Software granted herein is a limited license and therefore pursuant to the License to the Software granted herein, the Licensee shall not be permitted to: (a) do commercial time-sharing, provide subscription, or use the Software on behalf of another Person; or (b) sub-license or rent the Software, Documentation or any third-party database; or (c) make copies of the Software; or (d) provide or grant access to the Software to any other Person; or (e) edit, amend, modify, tamper with, harm, reverse engineer, modify, decompile, disassemble or otherwise attempt to extract information from the Software; or (f) create derivative works based on the Software or such works that are intended to be functionally equivalent with the Software or parts of it; or (g) patch, update or otherwise activate the Software directly without prior written consent from the Licensor; or (h) disclose, distribute or relocate (other than within the Licensee), resell, lease, loan, transfer, sub-licence, assign or allow any type of unauthorized third party use or access to the Software; or (i) put the Software to any use not covered within this Agreement.
3.5 The access to the Software is enabled only through a machine/ devise specific valid licence key issued by the by the Licensor (“License Key”). The Licensor shall be entitled to access and Use of the Software only if a genuine License Key issued by the Licensor is applied to the Software. Any access, installation or usage or attempted usage of the Software without a genuine License Key is strictly prohibited. Any access, installation or usage of the Software through an unauthenticated, invalid, or corrupt license key may damage the Software, partially or completely and may result in loss of functionalities, features and data. Any attempt to use the Software beyond the scope, ambit and terms & conditions of the License issued pursuant to this Agreement is strictly prohibited.
3.6 The Licensor shall grant the Licensee with such number specific nature of License Key(s) as set forth in this Agreement in Annexure I hereto. The Licensee may seek further License Keys, from time to time, upon payment of additional License Fee.
3.7 Subject to payment of License Fee, the License(s) granted to the Licensee pursuant to the Agreement shall be valid for 12 (twelve) months or 1 (one) month as applicable (depends on subscription model chosen by the licensee) from the Effective Date (“Term”) and may be renewed by the Parties by mutual agreement in writing in that regard. In the case the License(s) is not renewed after the expiry of the Term, the License(s) in the Software granted to Licensee pursuant to the Agreement shall stand revoked and terminated immediately upon expiry of the Term. Upon termination or revocation of the License, the Licensee shall not be able to Use the Software for any transactions or dealings after the date of termination / revocation. The Licensor shall not, in any event whatsoever, be responsible or liable, to damage or loss caused to the Licensee in case the Licensee does not renew the License after expiry of the Term.
4. SERVICES AND SUPPORT
4.1 Upon payment of the License Fee, the Licensor shall provide and deliver to the Licensee the agreed number of the License Key as per the Agreement.
4.2 During the installation and activation, the Licensor shall provide the documentations and training videos to the Licensee's personnel with respect to Use of the Software.
4.3 The Licensee shall provide the Licensor with all relevant information and assistance reasonably required for an efficient delivery, installation, and activation of Software License. The Licensee shall always Use the Software with due care and in accordance with the Documentation and other instructions provided by the Licensor and always by properly trained personnel. The Licensor shall not be responsible or liable for non-installation or non-functioning of the Software in case the Licensee does not provide the hardware and software as per the description detailed by the Licensor or Uses the Software other than in accordance with the instructions of the Licensor.
4.4 The Licensor shall use commercially reasonable efforts to provide error corrections to the Software, as well as minor improvements to the Software, as such corrections and improvements become generally available. Nothing contained here shall require the Licensor to provide newer versions of the Software to the Licensee pursuant to this Agreement. In case, the Licensee wishes to obtain license to access and use newer versions of the Software, the Licensee shall be required to enter into a separate license agreement with the Licensor for the same.
4.5 The Licensor shall provide to the Licensee with basic Support services related to the Software and the License granted herein as set out in SLA ( https://bangdb.com/sla ) hereto.
4.6 Each of the Licensor and the Licensee warrant that it shall use its best effort to hinder and prevent piracy and hacking with respect to the Software. In the case of occurrence of any piracy and hacking with respect to the Software, the discovering Party shall inform the other Party immediately and both Parties shall jointly seek an appropriate remedy thereto.
5. FEES AND PAYMENTS
5.1 In consideration of the Licensor agreeing to the grant to the Licensee, the License in the Software for the Term, the Licensee shall pay to the Licensor as annual license fee such amount is mentioned in pricing section ("License Fee"). The License Fee shall be paid to the Licensor in advance in the manner provided in pricing details
5.2 In consideration of the Licensor providing Services to the Licensee, the Licensee shall pay to the Licensor service fee as per the rates detailed in pricing hereto (“Service Fee”). The Service Fee shall be paid to the Licensor on a monthly basis as per the invoices raised by the Licensor, within a period of 5 (five) days from the date of receipt of the invoice by the Licensee by email, failing which an interest at the rate of 2% (two per cent) per month shall be payable on the invoice amount for the period of delay. In case of delay, the Licensor shall be entitled to revoke the License Key or terminate the Agreement.
5.3 The License Fee and Service Fee payable to the Licensor under this Agreement shall be exclusive of any taxes that are required to be paid in respect of such License Fee/ Service Fee.
5.4 The Licensee Fee and the Service Fee, once paid to the Licensor, shall be non-refundable after 30 days. However, within 30 days, if genuine request is made for the refund, BangDB shall return the fee in total (not including the tax)
6. CONFIDENTIALITY
6.1 The Parties shall furthermore keep all obtained or received written or oral information concerning the business and affairs of the other Party, including but not limited to the Software, technical, commercial and operational affairs and agreements, strictly confidential and shall as a minimum protect it with the same degree of care as it protects its own confidential and proprietary information.
6.2 The Parties shall not without the other Party's written consent disclose any such Confidential Information in whole or in part to any other entity or person, save its own personnel and representatives who has a need to know and is subject to an obligation not to disclose Confidential Information of the receiving Party and is aware of the obligations of this Agreement.
6.3 The Licensee agrees to abide by the following confidentiality obligations with respect to the Licensor's Confidential Information:
6.3.1 The Licensee shall not disclose it to any third party unless (i) the Licensor has given its specific and express prior written approval, (ii) the disclosure is expressly allowed under this agreement, or (iii) the disclosure is necessary to comply with a valid court order;
6.3.2 The Licensee shall not use it for any reason other than to exercise its rights and perform its obligation under this Agreement; and
6.3.3 The Licensee shall protect it from unauthorized dissemination in the same manner as that it protects its own Confidential Information, and in any event with reasonable precautions (which include limiting access to employees and contractors on a "need-to-know" basis).
6.4 If the Licensee believes that he must disclose the Licensor's Confidential Information in order to comply with a valid court order, the Licensee must promptly notify the Licensor and cooperate with the Licensor if the Licensor chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or to limit the nature or scope of the information to be disclosed.
6.5 The Parties undertake to take all necessary steps to ensure that all of its officers, employees, consultants and/or other personnel uphold the strict confidentiality obligation undertaken herein.
7. TERMINATION
7.1 The Licensor shall have the right to terminate the Agreement and revoke the License immediately, by written notice to the Licensee, in case the Licensee breaches any provision of the Agreement or commits any violation of the terms & conditions of the License and such breach, if capable of being remedied, is not rectified by the Licensee to the satisfaction of the Licensor within a period 15 days from the date of notification to that effect to the Licensee from the Licensor.
7.2 The Licensee shall have the right to terminate the Agreement, by written notice to the Licensor, in case the Licensor breaches any provision of the Agreement and such breach, if capable of being remedied, is not rectified by the Licensor to the satisfaction of the Licensee within a period 15 days from the date of notification to that effect to the Licensor from the Licensee.
7.3 Upon termination or expiry of the Agreement, the License shall stand terminated and revoked automatically and the Licensee shall (i) immediately cease all use of the Software and Documentation, (ii) promptly return to the Licensor or destroy all copies of the Software, the License Key and the Documentation in Licensee's possession or control, and (iii) certify in writing to the Licensor that Licensee have complied with clauses (i) and (ii).
8. LIMITATIONS OF WARRANTY AND LIABILITY
8.1 The Software shall be provided to the Licensee on an “as is” basis and without any warranty of any kind.
8.2 The Licensor shall not be responsible or liable for any deficiency or damage to the Software or to any loss to the Licensee arising out of access and use of the Software by the Licensee in violation and breach of the terms & conditions of the License and the Agreement.
8.3 In no event will the Licensor be liable for any indirect, special, incidental, consequential (including lost profit), or other damages based in contract, tort or otherwise.
8.4 Notwithstanding anything to the contrary contained in this Agreement, in no event will the Licensor's or any of its shareholders', directors', employees', agents' total liability to the Licensee for all damages, liabilities, losses, and causes of action arising out of or relating to (i) this Agreement, (ii) the Software and the Services, (iii) the Licensee's use or inability to use the Software, however caused and whether arising in contract, tort including negligence, warranty or otherwise, exceed the amount of one month License Fee.
9. INTELLECTUAL PROPERTY
9.1 The Licensor is the sole and absolute owner of any and all intellectual property rights and other rights in and to Software. The Parties agrees that nothing in this Agreement is indented to, nor shall be constructed to vest in, transfer or to otherwise convey to the Licensee any right, title or interest in the Software or any intellectual property associated therewith; and the Licensee shall have no right to acquire any right, title or interest in the same by lapse of time or otherwise.
9.2 The Parties agree that any intellectual property created by the Licensor specifically for the Licensee pursuant to the Services rendered, other than in or to the Software (“Licensee IP”) shall belong to the Licensee. The Parties agree that any and all rights, title and interest in the Licensee IP shall always fully and absolutely vest in the Licensee, on a perpetual and worldwide basis.
9.3 The Parties agree that performance of services pursuant to this Agreement may result in discovery, creation or development of copyright, designs, processes, methods, techniques, improvements, strategies, or other original works of authorship and other intellectual property rights to or relating to the Software and the Licensee agrees and acknowledges that all rights, title and interest in and to all such intellectual property, upon the creation of the same, shall always fully and absolutely vest in the Licensor.
10. GOVERNING LAW AND JURISDICTION
This Agreement and the relationship among the Parties hereto shall be governed by, and interpreted in accordance with, the laws of India. Subject to the arbitration provision contained in Clause 11 below, the courts of competent jurisdiction at Bengaluru, Karnataka, India shall have exclusive jurisdiction over all matters arising pursuant to this Agreement.
11. DISPUTE RESOLUTION
All disputes in relation to this Agreement will be resolved by arbitration under the Arbitration and Conciliation Act, 1996, in Bengaluru, Karnataka, by a sole arbitrator appointed by the Parties mutually. The arbitration award shall be final and binding on the Parties, and enforceable in accordance with its terms & conditions. The arbitrator shall state the specific reasons for their findings in writing. The Parties agree to be bound thereby and to act accordingly.
12. MISCELLANEOUS
12.1 Audit and Compliance
The Licensor may audit (using its own employees and those of an independent auditing firm that is subject to appropriate confidentiality obligations) Licensee's use of the Software and the Documentation to verify Licensee's compliance with this Agreement. The Licensee agrees to give the Licensor (or the auditing firm) reasonable access to Licensee's facilities and records for purposes of conducting these audits. The Licensor will give Licensee at least 3 days advance notice before conducting an audit. The audits will be conducted during normal business hours. The Licensor will bear all the costs it incurs (including the fees and expenses of the auditing firm, if any) in conducting an audit, unless the audit reveals that Licensee have failed to comply with this agreement in a material way, in which case Licensee agree to reimburse the Licensor for these costs.
12.2 No Waiver
No waiver of any provision of this Agreement shall be valid unless expressly made in writing and signed by the Party to be charged therewith. The waiver of a breach of any provision of this Agreement shall not be deemed to constitute a waiver of any other or subsequent breach of the same or any other provision hereof.
12.3 Confidential Terms & Conditions
The Licensee shall not disclose the terms & conditions of this Agreement or the pricing contained therein to any third-party.
12.4 Notices
All notices or reports which are required or may be given pursuant to this Agreement shall be in writing and sent by prepaid post with recorded delivery and shall be deemed duly given when delivered to the respective executive offices of the Licensor and Licensee at the addresses first set forth above.
12.5 Variations
No variation including any, novation, amendment, supplement, deletion or replacement of this Agreement (or of any of the documents referred to in this Agreement) shall be valid unless it is made by an instrument in writing and signed by each Party.
12.6 Independent Contractors
The parties to this agreement are independent contractors. Neither party is the agent or partner of the other party, or has any power or authority to act on behalf of the other party
12.7 Force Majeure
Any delay or non-performance of any provision of this Agreement (other than for the payment of amounts due hereunder) caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
ANNEXURE I
DESCRIPTION OF SOFTWARE
The software is cloud services offered by BangDB in the name of Ampere. Ampere is cloud platform and services for data ingestion, processing and analytics for various domains
LICENSE KEYS
The Licensor shall initially provide the Licensee with License Keys based on the license model as defined in https://bangdb.com/pricing. This is for getting started. As more servers / instances of the BangDB Software is added in future, more licenses may be required.