END-USER SOFTWARE LICENSE AGREEMENT
BASIS OF AGREEMENT
1.1 Where “Software” means systemverilog compiler and simulator (called atssim), which is a properitary software product of Avinya Technology Systems Pvt Ltd. The “vendor” or “supplier” or “licensor” is Avinya Technology Systems Pvt Ltd. “Customer” or “licensee” is an individual or an entity who is purchasing license to use software from vendor.
1.2 The following definitions apply to this Agreement:
“Additional User” means a User above the number of Users specified in the applicable ordering document.
“Affiliates” means entities controlling, controlled by or under common control with Supplier.
“Agreement” means the terms and conditions set out in this document (“Terms and Conditions”); the applicable ordering document (together with any renewal thereof); and Special Conditions (if any) agreed between Supplier and Customer. In case of conflict between the documents comprising this Agreement, the documents comprising the Agreement shall prevail in the following order of precedence: 1. Order Form; 2. Special Conditions; 3. these Terms and Conditions.
“Charges” mean the fees payable by Customer for the licensing of the Software as specified in the applicable ordering document.
“Competitor” shall mean a third party that is regularly engaged in the business of developing or marketing software that performs the same or similar functions as one or more of the modules of the Software licensed hereunder by Customer.
“Control”: an entity will be deemed to Control another entity if it has the power to direct or cause the direction of the management or policies of such entity, whether through the ownership of voting securities, by contract or otherwise.
“Documentation” means the User Guide(s) or any other information document published from time to time for the relevant software on www.avinyatechnology.com.
“Initial Subscription Period” means the period from the Start Date to the Initial Expiry as specified in the applicable ordering document; where the Start Date for the Software has for any reason to be adjusted, Supplier may at its discretion either a) adjust the Initial Subscription Period to run from the revised Start Date or b) reduce it and invoice on a pro-rata basis for the reduced period.
“Renewal Period” means each successive 12 month period (or such other period as the parties may agree) following the expiry of the Initial Subscription Period.
“Special Conditions” means individually negotiated variations, amendments and/or additions to these Terms and Conditions or those of an ordering document and are deemed to be included in this Agreement.
“Start Date” in respect of each Software licensed means the day when license (“license.dat”) file is created by customer on its computer.
“Term” in respect of each Software licensed comprises the Initial Subscription Period and any Renewal Period in relation to that Software.
“Updates” mean any periodic Software releases, if any, for purposes of 1) providing minor enhancements and/or improvements, patches, fixes, or the like to the Software; or 2) resolving technological issues related to Customer’s then-current Version of the Software.
“User” means personnel of Customer authorised by Supplier and Customer to use the Software as more particularly specified in the applicable ordering document.
“Version” means a new release of the Software (outside a point release) that includes a major revision, alteration, improvement, modification, or the like, to the current Software release.
1.3 The software you seek to install or previously have installed from vendor is licensed only on the condition that you agree to the terms and conditions set forth below. PLEASE READ THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT CAREFULLY.
IF YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, PLEASE SELECT THE BOX ON THIS PAGE LABELED “I ACCEPT,” AT WHICH TIME THE SOFTWARE PURCHASE WILL BE ENABLED ON YOUR COMPUTER.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE SELECT THE BOX ON THIS PAGE LABELED “I DO NOT ACCEPT,” WHICH WILL TERMINATE THE SOFTWARE INSTALLATION.
IF THE SOFTWARE IS ALREADY INSTALLED AND LICENSED, YOU HAVE ALREADY AGREED TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR SOMEONE HAS DONE SO ON YOUR BEHALF.
This End-User Software License Agreement (this “Agreement”) sets forth the terms under which customer, as an individual or entity (or, for entities, any employee or agent that customer authorizes to use the Software) authorized by Vendor, may use the Software.
Access to and use of the Software is by permission of Vendor only, and only for applicants who accept this Agreement. Vendor may grant or withhold approval in its sole discretion.
Based on the foregoing and for other good and valuable consideration, customer and Vendor agree as follows:
1.4 . NATURE OF AGREEMENT. This Agreement is a legal contract made between customer and Vendor. This Agreement contains the terms and conditions with which customer must comply in order to access and use the Software.
2. SOFTWARE LICENSE
Supplier grants Customer a nonexclusive, nonassignable, nontransferable, nonsublicensable, limited licence to use for the number of Users at its licensed Site(s), the Software (both number of Users and licensed Site(s) are specified in the applicable ordering document), in executable code only, in Customer’s normal course of business (including the version initially licensed together with any Updates included in the subscription, but excluding any new software feature or substantial additional functionality for which Supplier, in its sole discretion, generally charges customers of the Software additional charges) (“Software”). A “Site” means all personal computers, servers or minicomputers (including networked systems) with the same operating system platform at a single location or at different locations which are connected by a single networked system (i.e., any combination of two or more terminals that are electronically linked and capable of sharing the use of a single software product). In addition, Users who work at or are assigned to the licensed Site may use the Software on personal computers or laptops located off-site. The Software is protected by copyright and various Indian and international patent applications.
Customer may make copies of the Software for backup purposes only. Each copy made by Customer must include the copyright/proprietary rights notice(s) embedded in and affixed to the Software. All other copying is prohibited.
Customer hereby acknowledges and agrees that all right, title and interest in and to the Software, the Documentation and any other related materials are, and shall remain, vested solely in Supplier, its Affiliates and other software owners, if any, and Customer shall not hold itself out as having any ownership or other rights with respect thereto, except as specifically granted hereunder. Except as expressly permitted herein, Customer agrees that it shall make no use of the Software, the Documentation or any other related materials without Supplier’s prior written consent. Any and all goodwill associated with such rights shall inure directly and exclusively to the benefit of Supplier.
3. OWNERSHIP OF SOFTWARE.
Vendor retains all rights to the Software and the Documentation not specifically granted in this Agreement. Vendor owns the Software and the Documentation and all copyright and other intellectual property rights therein, and this Agreement does not transfer to customer any title to or any proprietary or intellectual property rights in or to the Software, any updates or derivative works thereto, or the Documentation, or any copyrights, patent rights, or trademarks embodied or used in connection therewith, except for the rights expressly granted in this Agreement. The Software and the Documentation are protected by Indian and Internatioal laws and international treaty provisions. CUSTOMER MAY NOT USE, COPY, OR MODIFY THE SOFTWARE, IN WHOLE OR IN PART, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT.
To the maximum extent permitted by law, customer shall not (a) modify, reverse engineer, decompile, disassemble, or attempt to derive the source code of the Software; (b) rent, lease, loan, sell, sublicense, distribute, transmit, network, or otherwise transfer the Software access to any third party; (c) make any copy of or otherwise reproduce or display the Software (or any of the browser screens comprising the Software user interface) except for those copies necessarily made by the personal computer and Internet browser that are running the Software; (d) use hardware or software to multiplex or pool connections, or otherwise allow multiple users or multiple computers or devices to access or use the Software indirectly through the licensed computer; (e) disclose customer’s license key provided by Vendor; or (f) disclose customer’s User ID or Password to any third party. Customer agrees to take all reasonable steps to safeguard his User ID and Password for the Software so as to ensure that no unauthorized person will have access to it, and that no persons authorized to have access will make any unauthorized use. Customer shall promptly report to Vendor any unauthorized use of the Software of which you become aware and shall take such further steps as may reasonably be requested by Vendor to prevent unauthorized use thereof. Customer agrees to notify its employees and agents who may have access to Software of the restrictions contained herein and to ensure their compliance with these restrictions.
5. CONFIDENTIAL INFORMATION
5.1 Supplier acknowledges that any documents, the contents thereof, or other proprietary or confidential materials expressly designated as confidential that are provided to Supplier by Customer during the Term of this Agreement (“Customer Confidential Information”) are valuable assets of Customer. Supplier will take reasonable steps to ensure that the Customer Confidential Information is not used or disclosed except as expressly permitted by this Agreement. Supplier will not permit any unaffiliated third party access to, in any manner, the Customer Confidential Information, except as provided in this Agreement. Customer Confidential Information shall not include information that consists of ideas, concepts, know-how or techniques relating to the enhancement, customisation, installation or implementation of the Software.
5.2 Customer acknowledges and agrees that the Software constitutes a valuable proprietary product of Supplier and that the Software, together with the terms of this Agreement, shall be referred to as the “Supplier Confidential Information.” Customer will take reasonable steps to ensure that the Supplier Confidential Information is not used or disclosed except as expressly permitted by this Agreement. Customer will not permit any third party access to, in any manner, the Supplier Confidential Information, except as provided in this Agreement. Customer may permit its independent contractors access to the Supplier Confidential Information to the extent necessary for such contractor’s provision of services to Customer if such contractor executes a confidentiality agreement with Customer or Supplier which prohibits the contractor from using or disclosing the Supplier Confidential Information; provided, however, that such independent contractors may not include any Competitor.
6. CHARGES OR FEE
6.1 The Charges payable by Customer for use of the Software will be as specified in the applicable ordering document and will cover the Software licence, maintenance, and support services as provided in clauses 7 and 8 of this Agreement.
6.2 The charges or fee for use of the software for a specified period and for specified number of instances on a single machine as mentioned in ordering document, will not be refundable in any circumstance.
7. MAINTENANCE TERMS
7.1 Maintenance & Support Services
Maintenance & Support Services consist of the following:
7.1.1 Updates. Supplier may provide Updates to and/or new Versions for the Software to Customer which shall be included in the Charges. Customer will be responsible for installing any such Updates and/or new Versions. However, Supplier will provide technical support for only the most current Version and the immediately preceding Version of the Software.
7.2 Supplier’s Obligations
7.2.1 Supplier’s obligations hereunder will extend only to (a) the Updates and Versions of the Software provided to Customer by Supplier; and (b) Software that has not been modified or altered in any way by anyone other than Supplier.
7.2.2 Maintenance Services will not include services for the items for which Supplier is not responsible set forth in clause 6 of this Agreement.
7.3 Customer Obligations.
7.3.1 Cooperation. Customer shall ensure that Supplier’s personnel are provided with such information under Customer’s control as is reasonably necessary to enable Supplier to comply with its obligations hereunder.
7.3.2 Updates and New Versions. In the event that Supplier determines that any of Customer’s reported maintenance problems cannot be resolved due to Customer’s failure to install Updates or procure new Versions of the Software, Customer will be given a reasonable opportunity to install such Updates or procure a new Version. If, after such opportunity, Customer fails or otherwise refuses to install such Updates or procure such new Version, Supplier shall be relieved of its obligations under this clause 7.
8.1 Installation of the Software
Installation of all hardware and supporting software so that minimum configuration requirements for installation of the Software are met is the responsibility of Customer and installation of the Software shall also be the responsibility of Customer.
Customer’s sole remedy for Supplier’s material breach of its obligations under this clause 8 will be to have Supplier re-perform the defective services so that they conform to the specifications provided herein.
9. TERM AND TERMINATION.
The term of this Agreement coincides with the term of the license, which is specified on the order confirmation. The term of this Agreement and the license grant herein shall commence on the date customer agrees to this Agreement and installs the Software. This license shall also terminate automatically on customer’s failure to comply with any of the other terms of this Agreement. On termination of this Agreement, customer agrees to promptly discontinue use of the Software, deactivate the license key per instructions provided by Vendor, destroy all printed copies and delete all electronic copies of any documentation that customer has downloaded, printed, or created relating to the Software, and to ensure that no copies of any of the Software screens, data, or other content remain archived or otherwise stored on his computers. Notwithstanding termination, the provisions of Sections 3, 9, 10, 11, 12, and 13 of this Agreement shall survive and continue to apply.
Customer agrees that he will not disclose to any third party the Software or any portion thereof, any technical, product, or business information, or any information that Vendor identifies as confidential (collectively, “Confidential Information”) related to the Software without the prior written consent of Vendor. Customer shall maintain the confidentiality of all Confidential Information and shall not use it for any purpose other than the performance of this Agreement.
Notwithstanding the foregoing, Confidential Information does not include information that customer can demonstrate was (a) publicly available at the time of disclosure, or later became publicly available through no act or omission by customer; (b) in customer’s possession before disclosure by Vendor; or (c) disclosed to customer by a third party not in violation of any obligations of confidentiality to Vendor or to any third party.
11. PRIVACY AND COLLECTION AND DELETION OF PERSONAL OR SYSTEM INFORMATION.
The Software may employ applications and tools to collect personally identifiable, sensitive or other information including personal information, network information, geographical information, information about the usage of the software, license information (key) expiration or machine information (including, but not limited to, information regarding the machine, system, disk ID, MAC address), collectively “Data.”
The collection of this Data may be necessary to customer and customer’s users with relevant Software or Technical Support. Without access to this Data, we may not be able to verify your compliance with this Agreement, among other things.
By entering into this agreement or using the Software or Technical Support, customer and customer’s users agree to the collection, processing, copying, backup and storage of this Data in and from the India or other countries or jurisdictions outside of customer or his users’ own as part of the Software or Support.
If customer choose to have his personal information deleted from our database, please send us a written request. Please note that we may need to retain certain records for legal or internal business reasons and some of customer’s information may remain on backup systems in compliance with applicable law. We encourage customer promptly to update your personal information when it changes.
12. LIMITATION OF LIABILITY.
Customer is not entitled to receive damages from Vendor for any cause relating to this Agreement, to customer’s use of the Software, to any services provided by Vendor under this Agreement, or to any services provided by any third party in connection with customer’s use of the Software. In addition, in no event shall customer be entitled to obtain any injunctive relief or enjoin, restrain, or otherwise interfere with Vendor or with the distribution, operation, development, or performance of the Software or any related products. IN NO EVENT SHALL VENDOR BE LIABLE TO CUSTOMER FOR ANY DAMAGES WHATSOEVER ARISING OUT OF HIS USE OF, OR INABILITY TO USE, THE SOFTWARE. IN NO EVENT SHALL VENDOR BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR LOST BUSINESS OPPORTUNITIES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
13. LIMITED WARRANTY AND DISCLAIMER.
13.1.1 Except as specifically provided in this Agreement, the Software is provided “as is” without warranty of any kind, express or implied, including but not limited to warranties of performance, merchantability, fitness for a particular purpose, accuracy, omissions, completeness, currentness and delays. Customer agrees that outputs from the Software will not, under any circumstances, be considered legal or professional advice and are not meant to replace the experience and sound professional judgment of professional advisors in full knowledge of the circumstances and details of any matter on which advice is sought.
13.1.2 Supplier warrants to Customer that it holds itself the necessary rights to grant the rights specified in this Agreement and that it has authority to enter into this Agreement with Customer.
13.1.3 Some systems/software may not be capable of supporting the Software and Customer acknowledges (a) that it has made appropriate investigations into the necessary systems/software required to support Customer’s use of the relevant Software and (b) that performance of that Software may vary with equipment and telecommunications links with which it is used.
13.2 Exclusion of liability
13.2.1 Neither Supplier, its Affiliates nor any licensors of the foregoing make any warranty that access to any Software will be uninterrupted, secure, complete or error free.
13.2.2 Other than in respect of the warranty given in Clause 13.1.2 and 14.1 Supplier shall not be liable in contract, tort, delict or otherwise for any loss of whatsoever kind howsoever arising suffered in connection with the Software.
13.2.3 Supplier shall not be liable in contract, tort, delict or otherwise for any loss of revenue, business, anticipated savings or profits, loss of goodwill or data or for any indirect or consequential loss whatsoever, howsoever arising suffered in connection with the Software.
13.2.4 Without prejudice to the generality of clauses 14.2.1 to 14.2.3, in no event shall Supplier, its Affiliates and/or the licensors of the foregoing be liable to Customer for any claim(s) relating in any way to:
(a) Customer’s inability or failure to perform legal or other research related work or to perform such legal or other research or related work properly or completely, even if assisted by Supplier, its Affiliates and/or licensors of the foregoing or any decision made or action taken by Customer in reliance on the Software; or
(b) any lost profits (whether direct or indirect) or any consequential, exemplary, incidental, indirect or special damages relating in whole or in part to Customers’ rights under this Agreement or use of or inability to use the Software even if Suppliers, its Affiliates and/or licensors of the foregoing have been advised of the possibility of such damages.
13.2.5 Other than in respect of the warranty given in Clause 13.1.2 and 14.1 Supplier will have no liability whatsoever for any liability of Customer to any third party which might arise.
13.2.6 Customer shall accept sole responsibility for and Supplier shall not be liable for the use of the Software by Customer, or any User and Customer shall hold Supplier harmless and fully indemnified against any claims, costs, damages, loss and liabilities arising out of any such use.
13.2.7 Nothing in this Agreement confers or purports to confer on any third party any benefit or any right to enforce any term of this Agreement.
13.2.8 In no event shall Vendor or its suppliers be liable for any damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss) arising out of the use of or inability to use this Software, even if Vendor has been advised of the possibility of such damages.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, VENDOR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES ALLEGED TO HAVE ARISEN FROM CUSTOM, USAGE, OR THE COURSE OF DEALING BETWEEN THE PARTIES. VENDOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. IN ADDITION, VENDOR DOES NOT WARRANT OR GUARANTEE THAT CUSTOMER WILL BE ABLE TO ACCESS THE SOFTWARE AT ALL TIMES. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT INTERNET CONGESTION AND OUTAGES, AS WELL AS MAINTENANCE, DOWNTIME, AND OTHER INTERRUPTIONS, MAY INTERFERE AT TIMES WITH CUSTOMER’S ABILITY TO ACCESS THE SOFTWARE.
HOWEVER, VENDOR DOES NOT SEEK TO LIMIT CUSTOMER’S WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW.
14. INFRINGEMENT CLAIMS
14.1 Supplier warrants to Customer that no Software to which Customer has subscribed, nor its features infringe any industrial or intellectual property rights of any third party.
14.2 Customer shall promptly inform Supplier if Customer becomes aware of:
(a) any unauthorised use of the Software;
(b) any actual, threatened, or suspected infringement of any intellectual property of Supplier, its Affiliates and/or licensors of the foregoing in the Software which comes to Customer’s notice; and
(c) any claim by any third party coming to its notice that the Software infringes the intellectual property or other rights of any other person.
15. GENERAL PROVISIONS
15.1 Effect of Agreement
This Agreement (including any applicable ordering document) embodies the entire understanding between the parties with respect to the subject matter of this Agreement and supersedes any and all prior understandings and agreements, oral or written, relating to the subject matter. Furthermore, this Agreement supersedes the terms and conditions of any clickthrough agreement associated with the Software. Such Special Conditions as are agreed between Supplier and Customer shall apply, subject to clauses 15.1.1 and 15.1.2 for the Term.
15.1.1 Except as otherwise provided in this Agreement, Supplier may amend the terms and conditions of this Agreement (“Amended Terms”) by giving Customer at least 15 days prior written or online notice. Unless Customer is notified to the contrary by Supplier, such Amended Terms shall only apply after the expiry of any Initial Subscription Period, or after the expiry of the current Renewal Period as the case may be.
15.1.3 Any other amendment must be in writing and signed by both parties.
15.2 Force Majeure
Supplier shall not be liable for any delay or failure in performing hereunder if caused by factors beyond its reasonable control, such as acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, failure of telecommunications or Internet services, industrial or labour dispute, inability to obtain necessary supplies and the like.
Except as otherwise provided, all notices and correspondence must be given in writing to Supplier at: Avinya Technology Systems Pvt Ltd, 1st Floor, HIG/ C-54, Shailendra Nagar, Raipur (Chattisgarh) – 492001, INDIA or such other addresses as may from time to time be notified to Customer in writing; and to Customer at the address set out in the applicable ordering document unless otherwise notified to Supplier in writing.
15.4 Governing Law and Assignment
This Agreement and all matters arising out of it shall, unless otherwise specified on the applicable ordering document or by Supplier in writing, in all respects be governed by the laws of India and shall be subject to the non-exclusive jurisdiction of the Indian courts at Raipur city of Chhattisgarh state. However nothing in this clause shall exclude or limit applicable mandatory local law relating to Customer. Supplier may, upon written notice to Customer, assign or transfer this Agreement or any rights and obligations hereunder either to an Affiliate or to a third party successor to all or substantially all of the business, stock or assets of Supplier’s legal information business, in each case, without the prior consent of Customer. Supplier may without the prior written consent of Customer and without notice assign any benefit or transfer, delegate or sub-contract any of their duties and obligations under this Agreement to any third party, provided that in the case of sub-contracting, Supplier shall remain responsible for the performance by its sub-contractors of such obligations under the Agreement. Neither this Agreement nor any part or portion may be assigned, sublicensed or otherwise transferred by Customer without Supplier’s prior written consent. Should any provision of this Agreement be held to be void, invalid, unenforceable or illegal by a court, the validity and enforceability of the other provisions will not be affected thereby. Failure of any party to enforce any provision of this Agreement will not constitute or be construed as a waiver of such provision or of the right to enforce such provision. The headings and captions contained in this Agreement are inserted for convenience only and do not constitute a part of this Agreement.
15.5 Export Laws
Customer agrees to comply with all relevant export laws and regulations of the India and other countries (collectively, “Export Laws”) to ensure that no Software or any portion of it is exported, directly or indirectly, in violation of Export Laws, and that no access to the specified services is given by Customer to any embargoed country or their nationals, or any other embargoed/denied persons listed from time to time by India or other counties. Supplier will not be liable for default or delay caused by Supplier’s efforts to comply with Export Laws. If Export Laws change after signature of this Agreement and such changes materially inhibit or prohibit Supplier from performing its obligations under this Agreement, Supplier will not be liable for their non-performance and either or both Supplier and Customer will have the right to terminate this Agreement with respect to the applicable Software.
Clauses 10 (Confidential Information), 13 (Disclaimer of Warranties and Limitation of Liability), and 15 (General Provisions) shall survive any termination or expiry of this Agreement.