THIS PROOF OF CONCEPT AGREEMENT (this “Agreement”) is made on
(“Effective Date”) by and between Intellect Design Arena Limited, a company incorporated under the provisions of the Companies Act, 1956 and having its registered office at. 244, Anna Salai, Chennai – 600006, India (which unless repugnant to the context, shall include its successors in interest, assigns, and legal heirs, hereinafter to be referred to as the “Intellect”) of One Part; and
Intellect and Customer will be collectively referred to as “Parties” and individually referred to as “Party”.
A. THE LICENSE:
Intellect hereby grants Customer a perpetual, non-exclusive, non-transferable, non-assignable LICENSE (without the permission to SUB-LICENSE) to use Intellect Software comprising of the modules described above and related documentation which together constitute “the Software”, under the terms and conditions contained herein, solely for Customer internal and lawful business purposes. License Fees shall be due upon access to Intellect Software to Customer. Intellect will host the Software as per the terms and conditions contained in Annexure A. Customer shall not use the software for any commercial warehousing, training purposes etc. During normal business hours, INTELLECT shall be entitled to audit and inspect Customer compliance with this agreement.
All proprietary and intellectual property rights in and to the Software, user manual and all components thereof and any copy of the same shall remain the sole and exclusive property of INTELLECT. INTELLECT retains all rights not expressly granted herein.
The Software shall
be used by Customer without any modifications, alterations, merger, adaptations, disassembling, decompiling or reverse engineering.
be deemed to be in use by Customer when it is loaded into the temporary memory (i.e. RAM) or installed into the permanent memory (e.g. : hard disk, CD-ROM or other storage device) of Customer computer.
be used by Customer in accordance with applicable laws.
be used by Customer without removing or destroying any copyright notices, proprietary markings or confidential legends placed or contained in it.
be used by Customer to process Customer own data during the course of Customer normal business activity and shall not be distributed to any other person / entity.
shall be used only by a specified number of named users as given above.
Customer shall not disclose to any third party other than Customer own employees with a need to know, without prior written consent from INTELLECT, the Software, related documentation and / or any information known to be confidential that was obtained from INTELLECT. This confidentiality obligation shall extend to Customer employees and Customer associate / subsidiary companies / concerns. Customer agree not to destroy or remove any copyright notices, proprietary marks or confidential legends placed or contained in the Software.
E .TRADE SECRET, COPYRIGHT AND PATENT INDEMNITY:
INTELLECT will aid Customer in the defense of any action against Customer claiming that the Software infringes any trade secret, copyright or duly issued patent, provided Customer notifies INTELLECT promptly and does not settle any claim without written consent of INTELLECT. Subject to this, INTELLECT shall pay all reasonable legal and court costs and expenses, if the Software is found to infringe a valid patent or copyright, INTELLECT’s obligations will be limited to : a) obtaining for Customer a right to continue to use the Software or b) modifying the Software so that it does not infringe or c) replacing the Software with other Software that does not infringe or d) terminating the agreement and upon its return, refund whole or part of the license fee paid, less a reasonable charge for the time during which Customer have used the Software. INTELLECT shall have no liability for and Customer shall indemnify and hold INTELLECT harmless from any claims arising out of (a) any unauthorised modification or alteration by Customer of the Software supplied by Intellect (b) the use of other than the latest version of the Software, if such infringement could have been avoided by the use of the latest version, (c) the use or combination of the Software with Software, hardware or other materials not recommended by Intellect, provided such infringement would not have arisen but for such use or combination, or (d) use of the Software in a manner other than that for which it was designed or contemplated as evidenced by Intellect’s Documentation, or (e) any unauthorized modification by Customer or a third party of the Software, or (f) any compliance with designs, plans or specifications furnished by Customer or on Customer behalf g) modification of the Software, by third party not authorized by Intellect; g) any unauthorised use of the Software, System or Services or other Deliverable Items modified or merged with other programs.
This clause states the entire liability of Intellect, and Customer sole and exclusive remedy, with respect to infringement of any intellectual property rights, and Intellect shall have no additional liability with respect to any alleged or proved infringement.
F. TERM AND TERMINATION:
The Term of the Agreement will be for a duration as specified by the Intellect.
The license granted herein will terminate if Customer fails to comply with any terms and conditions herein contained.
G. LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER:
1. NEITHER INTELLECT NOR ANYONE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SOFTWARE SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM LOSS OF DATA, OR USE OF THE SOFTWARE, WORK STOPPAGE, BUSINESS PROFITS, GOODWILL, COMPUTER FAILURE OR MALFUNCTION, NEGLIGENCE, THE RESULTS OF USE OR THE INABILITY TO USE THE SOFTWARE ARISING OUT OF ANY BREACH OF WARRANTY. INTELLECT’S ENTIRE LIABILITY TO CUSTOMER FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR STRICT LIABILITY SHALL BE LIMITED INDIAN RUPEES TEN THOUSAND ONLY. INTELLECT WILL NOT BE LIABLE FOR NON-PERFORMANCE OF THIS AGREEMENT DUE TO “FORCE MAJUERE” REASONS AND / OR REASONS BEYOND ITS REASONABLE CONTROL.
2. INTELLECT does not warrant that the Software will operate uninterrupted or that it will be free from minor defects or errors which do not materially affect its performance or that the Software is designed to meet all Customer business requirements. INTELLECT disclaims all warranties, express, implied, statutory or otherwise, including the implied warranties of merchantability and fitness for a particular purpose.
H. GOVERNING LAW, ARBITRATION & JURISDICTION:
Governing Law: This Agreement and its subject matter shall be governed by and construed in accordance with the Laws of India.
In the event of any controversy, difference or dispute arising out of or in the interpretation of any of the terms and conditions of this Agreement or on breach by any of the parties, the parties shall bring the said reasons to the notice of each other, and shall amicably try to settle any such issues within 30 days of such notice. In the event of the parties’ failure to reach amicable settlement as mentioned herein, all unresolved controversies, disputes or differences whatsoever arising between the Parties regarding this Agreement shall be referred to arbitration in accordance with Indian Arbitration and Conciliation Act, 1996 and the venue of arbitration shall be Chennai, India. Parties will endeavor to agree upon sole arbitrator, failing which each Party shall appoint its own arbitrator and the arbitrators so appointed shall appoint the third arbitrator who shall act as the Presiding Arbitrator. The Arbitration shall be conducted in English language. The Parties agree to abide by the Award of the Arbitrator(s).
Without prejudice to arbitration as contained in sub-clause (a) herein above, any and all disputes arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the appropriate courts at Chennai, India.
This Agreement supersedes all prior correspondences, Agreements, written or oral. The terms of this Agreement can be modified only in writing by the parties. This Agreement shall inure to the benefit of INTELLECT, its successors-in-interest and assigns. Waiver of breach of any provision of this agreement shall not be deemed a waiver of that provision or any other provision. Customer shall not assign this agreement to any party without prior written consent of INTELLECT.
Customer shall be entitled to access the Software and the Service through Internet, (“Service”) and use the same in accordance with the terms and conditions herein. Customer shall be provided with an access key and password by INTELLECT with which Customer may access the Software.
Intellect will provide hosting services during the term of the Agreement.
Intellect has selected Amazon as its hosting service provider for the Software envisioned by this Agreement and will be hosting the Customer copy of the Software at the AWS located in India.
Intellect will have the right to change data centers or move to a different hosting service provider, if business conditions warrant the same, upon ten (10) days prior written notice to Customer. In the event of transfer of hosting service provider or the backup storage, Parties shall mutually agree on the timelines of such transfer.
Access will be limited only for the number of authorised users. Additional modules / users if required by the Customer will be hosted with additional hosting / usage charges to be paid by the Customer.
Hosting services will be limited to hosting the Software in one environment, with uptime guarantee and backup of the database. Any additional services as required by the Customer will be on a chargeable basis.
Customer shall be solely responsible for ensuring the compliance with the applicable laws and regulations of the country from where the Service / Software is accessed by the User.
INTELLECT reserves right to provision / transfer data access from Amazon Web Services / Microsoft Azure to any other third party by providing reasonable notice to the Customer. Customer agrees to fully cooperate with INTELLECT during such change of service provider.
Maintenance: Periodic maintenance of the Software, as per maintenance schedule communicated to Customer in advance every month. The terms and scope of maintenance shall be communicated by Intellect from time to time to Customer.
Customer is required have the internet bandwidth / desktop / laptop with specifications as specified in this Clause to access the Software. “User Environment details” shall mean the specific user's hardware and software system, Internet connection speeds and any other requirements as specified in this Agreement.
Customer shall arrange at its cost, for the User Environment and the minimum technical requirements on each User's end. Customer acknowledges and agrees that these are necessary from Customer’s end for optimum performance of the Software. The User Environment is only recommendatory in nature and Intellect shall have no liability (i) in respect of the recommendations made by Intellect regarding the User Environment. Further, ensuring that the User Environment is available shall be sole responsibility of Customer and Intellect shall not be liable to provide the same to Customer. For best user experience the following recommendations are made by Intellect:
Each of the client machines need to have a minimum of 96 Kbps of dedicated bandwidth to operate. Customer to make sure that the actual bandwidth availability should be at least 80% of the subscribed bandwidth. Customers are recommended to go for broadband connection instead of a dial up facility for better performance.
Intellect may suspend Customer’s right to access or use any portion or all of the Software / Service immediately upon issuing a written notice to Customer for such period as mentioned in the notice (“Suspension Period”) if Intellect determines:
Customer use of or registration for the Service (i) poses a security risk to the Service or any third party, (ii) may adversely impact the Service or the systems or Content of any other Intellect’s customer, (iii) may subject Intellect, its affiliates, or any third party to liability, or (iv) may be fraudulent;
Intellect shall suspend the Customer right to access or use any portion or all of the Software / Service forthwith if Customer is in breach of this Agreement, including if Customer is delinquent on payment obligations as per the payment terms agreed in the Agreement. Intellect shall not be liable for any loss, cost, damage, expense incurred by Customer due to aforesaid suspension of the access/ Service.
Effect of Suspension
During the Suspension Period, Customers right to access or use any portion or all of the Service:
Customer remains responsible for all charges Intellect has incurred during the Suspension Period;
Customer remains responsible for any applicable dues, fees and charges for any Service that Intellect is Customer shall not be entitled to any service levels during the Suspension Period; and
THE SERVICE OFFERINGS ARE PROVIDED “AS IS.” INTELLECT MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR THE THIRD PARTY CONTENT, INCLUDING ANY WARRANTY THAT THE SERVICE OFFERINGS OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING CUSTOMER CONTENT OR THE THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, INTELLECT DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
Effect of expiration of this Annexure A
Customers’ access rights shall terminate and Customer’s password, access key, account or use of the Software/Service will also be terminated without any further notice.
Annexure B: Modules Licensed Of Intellect Software