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END USER LICENSE AGREEMENT
NOTICE TO USER: PLEASE READ THIS AGREEMENT CAREFULLY. BY COPYING, ACCESSING, INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU, THE LICENSEE, AGREE THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED THE SOFTWARE AND, ON WHOSE BEHALF, IT IS USED: FOR EXAMPLE, IF APPLICABLE, YOUR EMPLOYER.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT:
• DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE SOFTWARE.
AND
• PROMPTLY RETURN THE UNUSED MEDIA, DOCUMENTATION ANY OTHER RELEVANT ARTIFACTS AND COMPONENT PROGRAMS TO THE PARTY FROM WHOM IT WAS OBTAINED. IF SOFTWARE WAS DOWNLOADED, DESTROY ALL COPIES OF THE SOFTWARE.
a. Agreement: shall mean this End User License Agreement.
b. Affiliate: means any business entity controlling, controlled by, or under common control with the party to this Agreement. Control exists when an entity owns or controls fifty (50) % or more of the outstanding shares of any class of stock of sub-entity.
c. Documentation: shall mean any accompanying documents, content, data provided by the Licensor to the Licensee along with the Software.
d. Enhancements: shall mean any extension(s), modification, update, upgrade or addition to the Software that, when made or added to the solution or modules currently being used by Licensee, provides minor functionality enhancements but does not change overall utility, functional capability, or application.
e. Licensor: shall mean Qualitia Software Pvt. Ltd. and its Affiliated companies (and the successors and assigns and contractors of the Licensor and its Affiliates).
f. Licensee: shall mean you or if it has been acquired on behalf of any legal entity: for example, if applicable, your employer.
g. Software: shall mean Licensor program and its Enhancements provided to Licensee on a subscription license, pursuant to terms and conditions set out under this Agreement.
h. Subscription Term: means the period of time agreed to between the parties during which the Licensee may use and receive support for the Software together with any renewal term for which Licensee pays the applicable renewal Subscription Fees.
i. Support Services: means the Software support services provided to Licensee during the Subscription Term.
j. Subscription Fees: the fees payable for the Licensee being allowed to use the Software during the Subscription Term.
The Software, and all copies thereof, are protected under the laws of India. The Licensor owns all worldwide intellectual property rights in and to the Software. The Software is licensed, not sold. Use of some third-party materials included in the Software may be subject to its own terms and conditions which may be found in a separate license agreement or “Read Me” file located near such materials and Licensee shall be solely liable for usage of such third-party materials.
a. Grant of License:
i. In case you opt for a trial version: Subject to terms of this Agreement, the Licensor hereby grants the Licensee, for the duration of the trial version as may be granted by the Licensee through the license key (the “Trial Period”), a nonexclusive, non-assignable, limited license to use, access, download and install the Software. The license granted hereunder, shall be solely used to review, demonstrate and evaluate the Software for the Trial Period. The license to use, access and evaluate the Software is granted to you for the Trial Period and shall automatically terminate after the expiry of the Trial Period.
ii. In case you opt for a student edition: Subject to the Licensee’s compliance with the terms of this Agreement, the Licensor hereby grants the Licensee, for the duration of the student edition as may be granted by the Licensee through the license key (the “Learning Period”), a limited, non-exclusive, non-transferable, non-assignable, revocable, non-sub licensable, non-commercial license to use the Software solely for the internal learning purpose of the Licensee on subscription basis by accessing Licensor’s server or website as the case may be for the agreed subscription period. The Licensee may allow its users to use the Software only for the training or self-learning purposes for which the Software is licensed. The license for self-learning purpose as granted under this Agreement shall automatically terminate after the expiry of the Learning Period.
iii. In case you opt for a paid subscription: Subject to the Licensee’s compliance with the terms of this Agreement, the Licensor hereby grants the Licensee, for the duration of the Subscription Term, a limited, non-exclusive, non-transferable, non-assignable, revocable, non-sub licensable license to use the Software solely for its internal use on subscription basis by accessing Licensor’s server or website as the case may be.
b. Restrictions:
i. The Licensee may allow its employees to use the Software only for the purpose for which the Software is licensed. The Licensee may install and use the Software at any location so long as the maximum number of concurrent users does not exceed the number allowed under the relevant subscription availed by the Licensee. The Licensee confirms that the use and access of the employees and agents shall be in accordance with this Agreement. The Licensee understands that the license granted hereunder is personal and is not granted for the use and access by any third party, except for Licensee or it’s Affiliates.
ii. The Licensee shall not, directly or indirectly, a) copy, modify, distribute, adapt, translate, reverse engineer, decompile, disassemble, alter, reproduce or otherwise make any changes to the Software or attempt to discover the source code of the Software, or b) use the Software in any manner to provide time-sharing, benchmarking or other computer services to third parties, except as expressly provided herein, or allow any third party to access or benefit from the functionality of the Software, or c) use the Software, or allow the transfer, transmission, export, or re-export of the Software or portion thereof in violation of any applicable export control laws or regulations or for any illegal use, or d) use the Software for any purpose other than the purpose specified under this Agreement, f) use the Software to develop any competing or similar product, or g) use any of the Software’s components, add-ons, files, modules, audio-visual content, externals, contents including associated license material separately from the Software h) exceed the maximum number of concurrent users allowed to use the Software.
iii. The Licensee shall have no rights over the Software other than as specifically granted herein. All rights not specifically and unequivocally granted to the Licensee are reserved by the Licensor.
iv. In case of a trial version or the student edition, in addition to the above restrictions, the below restrictions shall apply –
• Unless otherwise permitted by the Licensor, the Licensee may not use this trial version or student edition of the Software for a commercial purpose.
• The Licensee may not use this trial version of the Software for a purpose other than solely for making a decision, whether to purchase a paid subscription of the Software.
c. Principal Program: The Licensee understands the Software is and shall be used as a principal program as it works on top of existing test automation tool (“Supporting Program”). This Agreement only governs the use of the Software and does not purport to be a license for use of any Supporting Programs or other third-party software. The Licensee is required to obtain all required legal licenses of all Supporting Programs at its own cost and risk.
d. Licensee’s obligations: The Licensee undertakes to secure and protect all copies of the Software in a manner consistent with the Licensee's obligations under this Agreement. The Licensee shall provide written certification from an authorised representative of the Licensee when requested that the Software is being used in conformance with the terms of this Agreement.
e. Delivery: The Licensor or its nominee shall deliver the Software and Documentation in electronic form or as the case may be, allow the Licensee to download the Software and the Licensee shall be responsible for the installation and integration of the Software into its system environment.
f. License Keys:
v. In order to prevent unauthorized use or copying, the Software may only be activated by use of valid license keys. These license keys can be obtained by making payment for the appropriate Software subscription. The activation process detailed in the product documentation and/ or communication from the Licensor will need to be followed by the Licensee in order to be able to use the Software. The Licensee may be unable to use the software if such activation process is not followed.
vi. The Licensee understands that it alone will be responsible for the storage and use of the license keys. In case of misappropriation or loss of the same, the Licensor will not be responsible.
a. Compliance with Laws
Licensee shall comply with all applicable local, state, national laws in connection with its use of the Product, including those laws related to data privacy, and the transmission of technical or personal data. Licensee acknowledges that Company exercises no control over the content of the information transmitted by Licensee or the permitted users through the Product. Licensee shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights. The Company agrees to comply with all applicable laws and regulations as they relate to its performance under this Agreement.
b. Unauthorized Use; False Information:
Licensee shall: (i) notify Company immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (ii) report to the Company immediately and use reasonable efforts to stop any unauthorized use of the Product that is known or suspected by Licensee or any permitted users, and (iii) not provide false identity information to gain access to or use the Product.
c. Access:
Licensee shall be solely responsible for the acts and omissions of its permitted users. Company shall not be liable for any loss of data or functionality caused directly or indirectly by the permitted users.
d. Licensee Content:
Licensee is solely responsible for collecting, inputting and updating all licensee content uploaded on the Product, and for ensuring that licensee content does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious.
a. For the duration of the Subscription Term the Licensor or its nominee shall provide the Licensee support and maintenance services as detailed herein.
b. During the Subscription Term, the Licensor will provide the Licensee with:
i. Access to Licensor’s databases containing information on known Software defects, defect corrections, restrictions, and bypasses;
ii. Unlimited support by telephone, facsimile and electronic mail during India Business hours (9:30am IST to 6:30 pm IST) on working days (all of the foregoing means of communication to be simultaneously available) by skilled personnel of the Licensor familiar with the Software to answer questions, furnish information and render assistance to Licensee in the use of the Software;
c. For the duration of the Subscription Term, the Licensor also agrees:
i. To fix the bugs reported by the Licensee within the terms specified herein, except those arising out of usage of Beta Version in licensee’s production environment.
ii. To make corrections, upgrades, updates, modifications, additions, substitutions, improvements to the Software as may be necessary to correct any defects and errors in the Software, to conform to its specifications.
d. It is agreed between the parties that any modifications, additions, substitutions not as a part of the Software Specification but required by the Licensee will be termed as customizations and terms of agreement of the same will be part of a separate contract.
e. Support for trial version or student edition: The aforementioned provisions of this Section shall not be applicable in case of a license granted for trial version or the student edition of the Software. In case of a license granted for trial version and the student edition of the Software, the Licensor shall not be liable to provide any Support Services.
a. Subscription Fees. Subscription Fees due for the Subscription Term shall be payable in advance. It is understood that the Subscription Fees are: (a) fixed for a particular Subscription Term; and (b) non-cancellable and not refundable. Subscription Fees shall be exclusive of all applicable taxes and Licensee shall be responsible for payment of all applicable taxes.
b. Payment. Payment of Subscription Fees is a condition precedent for Licensee’s right to use the Software as specified in this Agreement and Licensor reserves to suspend or terminate such right in case of non-payment of the Subscription Fees beyond five (5) days from the actual due date by the Licensee.
a. THE SOFTWARE IS PROVIDED ON “AS IS” BASIS. THE LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, TO LICENSEE OR TO ANY OTHER PERSON OR ENTITY WITH RESPECT TO THE SOFTWARE LICENSED HEREUNDER, AND THE LICENSOR DISCLAIMS ALL IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR FREE OR WILL PERFORM IN AN UNINTERRUPTED MANNER.
b. Further, the Licensee understands and agrees that it downloads and/or uses the Software at Licensee’s own discretion and risk and that Licensee will be solely responsible for any damages to any computer or loss of data that results from the download or use of the Software.
c. The Licensor shall not be responsible for any delays, delivery failures, or any other loss or damage resulting from the interrupted services, delays and other problems inherent in the use of such communications facilities.
d. The Licensor shall not be responsible or liable for any claims if: (a) the claim has occurred due to errors or omissions in any information, instructions or scripts, including Licensee’s Information, provided to the Licensor by the Licensee in connection with the Support Services and (b) any modification in the Software by Licensee or third party. For the purpose of clarity, the Licensee shall assume sole responsibility for the results, assessments, assumption or conclusion drawn from the use of the Support Services and the Documentation.
a. “Confidential Information” shall mean information disclosed by one party to the other and which includes, without limitation all software, documentation, financial, business, technical and marketing information, business plans, methods, processes, inventions, techniques, designs, data, know-how, ideas, concepts, strategies, trade secrets, software product and services and such other information. Confidential Information does not include information which: a) is in the public domain; (b) was known to the receiving party on the date of such disclosure or becomes known to such party without breach of any confidentiality agreement; (c) is independently developed by either party without violating any confidentiality obligations stated herein; (d) is disclosed pursuant to judicial order or requirement of the governmental agency or by operation of law.
b. The party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) shall keep such information in strict confidence and shall not disclose it to any third parties except to a limited group of receiving party’s directors, officers, agents, authorized representatives on a need-to-know basis.
c. Upon lapse or termination of this agreement or the Subscription Term or a request by the Disclosing Party (whichever is earlier), the Receiving Party shall immediately return to the Disclosing Party, all Confidential Information disclosed by the Disclosing Party and all copies thereof. All such information shall be and shall remain the sole property of the Disclosing Party.
d. The confidentiality obligations stated herein shall survive termination or expiration of this Agreement.
e. The Receiving Party agrees that any violation of the confidentiality obligations will cause irreparable injury to the disclosing party, entitling disclosing party to obtain injunctive relief in addition to all legal remedies.
The Licensee shall indemnify, hold harmless and defend the Licensor against any costs, damages, claims, expenses (including attorney’s fees and courts costs) arising out of or in connection with any claim relating to i) use of the Software other than as permitted under this Agreement, or ii) negligence or misconduct by the Licensee; provided that, the Licensor promptly notifies Licensee in writing no later than sixty (60) days after Licensor’s receipt of notice of any potential claim.
a. IN NO EVENT SHALL THE LICENSOR BE LIABLE TO LICENSEE OR A THIRD PARTY FOR ANY SPECIAL, 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 INSTALLATION 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 LICENSEE OR THE THIRD PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
b. NOTWITHSTANDING THE FOREGOING, 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 AN AMOUNT EQUIVALENT TO THE SUBSCRIPTION FEES PAID BY LICENSEE TO LICENSOR IN PRECEDING TWELVE MONTHS FROM THE DATE OF ANY CLAIM. THE FOREGOING LIABILITY CAP SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY OR REMEDY HEREIN.
a. This Agreement shall, unless otherwise terminated in accordance with the terms of this Agreement, commence on the date of your acceptance of this Agreement, and shall continue for the duration of the Subscription Term or the Trial Period or the Learning Period as the case may be, as agreed between parties and such period may be renewed from time to time.
b. Either party hereto may terminate this Agreement by providing the other party 30 day’s written notice of termination, in which case this Agreement shall terminate upon the expiry of said 30 day period;
c. Without prejudice to any other rights or remedies to which the parties hereto may be entitled, either party may terminate this Agreement without liability to the other if:
i. the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within fifteen (15) days of the non-defaulting party being notified in writing of the breach; or
ii. if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
a. Upon the lapse or termination of this Agreement:
i. The Licensee shall not make any further use of the Software or Documentation whatsoever nor permit its Affiliates, employees, representatives or agents, who are permitted access to the Software to do so; and
ii. The Licensee shall return to the Licensor all property belonging to the Licensor then in its possession, including Confidential Information and including expunging any Confidential Information from any computer, word processor or similar device into which it was programmed, and an authorised representative of the Licensee will certify to the Licensor that this has been done.
b. The termination of this Agreement shall not prejudice or affect any right of action or remedy which shall have accrued or shall thereafter accrue to either party.
c. The aforesaid termination events shall not entitle the Licensee to a refund of any unused portion of the Subscription Fees.
d. Sections 2 titled ‘Ownership of Software’, 3 b titled ‘Restrictions’, 3 d titled ‘Licensee’s obligations’, 9 titled ‘Limitation of Liability’, 11 titled ‘Consequences of Termination ’, 19 titled ‘Governing Laws’ and 20 titled ‘Dispute Resolution’ shall survive the termination of this Agreement.
The Licensor shall have the right to audit the Licensee, by itself or through its nominee, during business hours and upon reasonable prior notice in order to verify that the Software is being used in compliance with this Agreement. The Licensee shall be required to cooperate with such request and allow the Licensor all facilities and access to all documents and premises, required by the Licensor or its nominee to conduct such audit.
This Agreement will in all events be construed as a whole, according to its fair meaning, and not strictly for or against a party merely because that party (or the party's legal representative) drafted the Agreement. The headings, titles, and captions contained in this Agreement are merely for reference and do not define, limit, extend, or describe the scope of this Agreement or any provision herein. Unless the context requires otherwise, (a) the gender (or lack of gender) of all words used in this Agreement includes the masculine, feminine, and neuter, and (b) the word "including" means "including, without limitation”.
Neither party shall be liable for any failure or delay in fulfilling the terms of this Agreement due to fire, strike, war, civil unrest, terrorist action, government regulations, and acts of Nature or other causes which are unavoidable and beyond the reasonable control of the party claiming force majeure. Notwithstanding the foregoing, parties may terminate this Agreement without liability by notice to the other party if a Force Majeure Event prevents affected party from substantially providing any of the services or fulfilling its obligations under this Agreement, for thirty (30) consecutive calendar days.
This Agreement, along with the Exhibits constitutes the entire agreement between the parties hereto and supersedes any prior understanding or representation of any kind preceding the date of this Agreement, and may not be amended, supplemented, varied or otherwise changes except in writing. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement. Each party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty other than as expressly set out in this Agreement. This Agreement may be modified in writing specifically referencing this Agreement and any such modifications must be signed by both the parties.
If any provision of this Agreement is determined to be invalid, illegal or unenforceable in any respect, including because of the duration thereof, the area covered thereby, or the types of activities restricted thereby, by a court of competent jurisdiction, the validity, legality or enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
The Licensee may not assign this Agreement to any third party, including but not limited to its Affiliates. Licensor may assign this Agreement in conjunction with the sale of substantial assets, divestiture, merger or amalgamation, or to its Affiliates, and may delegate or subcontract its duties. Any unauthorized assignment of this Agreement is void. The Licensee understands and acknowledges that the license granted under this Agreement, shall not automatically pass on to any entity which is involved in an acquisition, demerger, merger or amalgamation with the Company.
The Licensee shall during the term of this Agreement permit and authorizes the Licensor to use the Licensee’s name(s) and trade marks in any advertising or promotional materials prepared by or on behalf of the Licensor to promote its products or services.
Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall preclude or restrict the further exercise of that or any other right or remedy.
a. This Agreement shall be construed and governed by the laws of India.
b. The parties agree to negotiate in good faith to resolve any dispute between them regarding this Agreement. If the negotiations do not resolve the dispute to the reasonable satisfaction of parties and within thirty (30) days from the negotiation, either party may refer the dispute to arbitration in accordance with the provisions of the Indian Arbitration and Conciliation Act, 1996 (“Rules”) and the proceedings shall be conducted in Pune in English language.
c. The parties agree that the dispute shall be settled by a sole arbitrator appointed in by the Licensor.
Except as otherwise expressly provided by this Agreement, all remedies available to one party for breach of this Agreement by the other party are cumulative and may be exercised concurrently or separately and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.
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