INDICUS SOFTWARE PVT LTD (“INDICUS”), HAS DEVELOPED “PROJECTION”, A REMOTE PROJECT AND SALES MANAGEMENT ENTERPRISE SOFTWARE BUILT USING ITS INDIGENOUS AI AND IOT LOW-CODE PLATFORM, “CONTINEO®.”
IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND YOU MUST DELETE OR RETURN THE SOFTWARE TO INDICUS OR ITS PARTNER WHO YOU HAD ACQUIRED IT FROM.
- LICENSE GRANTS AND RESTRICTIONS.
- Licensed Software – Licensed Software comprises of user manual, binary deployment files, configuration files, database scripts, and design documents. Subject to the acceptance of terms and conditions contained herein, INDICUS hereby grants Licensee non-transferable, non-exclusive, limited license to install, and execute the Licensed Software on a single environment, for use by a limited number of users as stated in the legal purchase order document issued by an authorized representative of Licensee and accepted by an authorized representative of INDICUS (Purchase Order) , solely for Licensee’s internal business use. Licensee may host the Licensed Software in a shared hosting environment or end user’s on-premise/privately hosted environment at Licensee’s own cost.
- Change of Licensed Software – INDICUS may modify the Licensed Software at any time without degrading its functionality or security features. INDICUS may degrade the functionality of the Licensed Software or discontinue the same or a part thereof in case of (i) legal requirements; (ii) lack of customer acceptance and/or (iii) security risks. INDICUS will notify Licensee of any material degradation of functionality or the discontinuation of the Licensed Software at least (30) days prior to the change effective date specified in the notice and Licensee may terminate the degrading service (30) days prior to the change effective date.
- LICENSEE’S RESPONSIBILITIES
- Technical Support – Licensee may be entitled to technical support guided by the terms and service levels stated in the Purchase Order.
- OWNERSHIP AND CONFIDENTIALITY
- Confidentiality – Licensee acknowledges that the Licensed Software contains valuable trade secrets of INDICUS and Licensee agrees to maintain the confidentiality of the Licensed Software using at least the same degree of care Licensee uses with Licensee’s own confidential information. Licensee agrees that Licensee’s obligations with respect to INDICUS’s Confidential Information shall survive the subscription term and for (i) a period of three (3) years after the termination/expiration of the subscription term where the Confidential Information is related to INDICUS’s general business information and (ii) indefinitely with respect to any Confidential Information related to INDICUS’s trade secrets or know-how.
- Feedback – If You give feedback about the Licensed Software to INDICUS, you give to INDICUS, without charge, the right to use, share and commercialize your feedback in any way and for any purpose. You will not give feedback that is subject to a license that requires INDICUS to license its software or documentation to third parties because we include your feedback in them. These rights survive the subscription term.
- Security Audit – Licensed Software delivers the required levels of security helping customers with best practices from an overall security design perspective. However, Licensee or Licensee’s end users are advised to conduct Security Audit at their own expense. INDICUS shall fix all the non-compliances raised during such external security audit which shall usually not be charged to Licensee. However, measures specific to Licensee’s custom requirements may be charged upon mutual discussion. In no event shall INDICUS and/or its partner be responsible for any security breach.
- Data Collection and Processing of Personal Data – The Licensed Software may collect information about You, your end users and customers and send that to INDICUS unless agreed otherwise. INDICUS may use this information to provide services, manage licenses and improve INDICUS’s products and services.
In the event INDICUS has an access to Personal Data, INDICUS shall process any Personal Data at all times in full compliance with the applicable data protection laws.
INDICUS LICENSES THE LICENSED SOFTWARE “AS IS,” AND MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND. INDICUS SPECIFICALLY DISCLAIMS ALL INDIRECT OR IMPLIED WARRANTIES TO THE FULL EXTENT ALLOWED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF, NON-INFRINGEMENT, MERCHANTABILITY, TITLE OR FITNESS FOR ANY PARTICULAR PURPOSE. INDICUS MAKES NO WARRANTY THAT (A) THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, LATENCY-FREE, RELIABLE OR ERROR FREE (B) THE SOFTWARE SHALL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA OR (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY INDICUS, ITS EMPLOYEES OR PARTNERS SHALL CREATE A WARRANTY (D) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SOFTWARE AND SERVICES ARE ACCESSED OR USED BY LICENSEE OR LICENSEE’S CUSTOMERS AT THEIR OWN RISK. INDICUS AND ITS PARTNERS SHALL NOT BE RESPONSIBLE FOR ANY CUSTOMER DATA. NEITHER INDICUS NOR ITS PARTNERS BUT LICENSEE ALONE SHALL HAVE SOLE RESPONSIBILITY FOR THE ACCURACY, QUALITY, INTEGRITY, LEGALITY, RELIABILITY, APPROPRIATENESS, AND INTELLECTUAL PROPERTY OWNERSHIP OR RIGHT TO USE OF ALL CUSTOMER DATA, AND INDICUS AND ITS PARTNERS SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY CUSTOMER DATA. INDICUS RESERVES THE RIGHT TO ESTABLISH OR MODIFY ITS GENERAL PRACTICES AND LIMITS RELATING TO STORAGE OF CUSTOMER DATA.
LICENSEE REPRESENTS AND WARRANTS THAT LICENSEE HAS NOT FALSELY IDENTIFIED THEMSELVES NOR PROVIDED ANY FALSE INFORMATION TO GAIN ACCESS TO THE LICENSE SOFTWARE AND / OR SERVICES.
- LIMITATIONS OF LIABILITY
- EXCLUSIONS OF LIABILITY – NEITHER INDICUS NOR ANY OF ITS OFFICERS, AGENTS, EMPLOYEES, PARTNERS OR REPRESENTATIVES SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR PENALTIES (INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOST BUSINESS, LOST DATA, BUSINESS INTERRUPTION, PERSONAL INJURY, AND THE LIKE), HOWEVER THEY ARISE, INCLUDING WITHOUT LIMITATION FROM THE USE OF THE LICENSED SOFTWARE, WHETHER FOR BREACH OR IN TORT, EVEN IF INDICUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- INDICUS LIMITATION OF LIABILITY – INDICUS SHALL NOT BE LIABLE FOR THE FOLLOWING –
- INDICUS’S TOTAL AGGREGATE LIABILITY – IF LICENSEE HAS ANY BASIS FOR RECOVERING DAMAGES DESPITE THE PRECEDING SECTIONS 7.1 AND 7.2, LICENSEE CAN RECOVER FROM INDICUS AND ITS PARTNERS ONLY DIRECT DAMAGES UP TO U.S. $5.00 OR TWELVE (12) MONTHS LICENSE FEES PAID BY LICENSEE WHICHEVER IS LESS. LICENSEE CANNOT RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES.
- ASSURANCES BY LICENSEE
Licensee represents and warrants that Licensee will take appropriate precautions, establish appropriate procedures and post appropriate notices to ensure that persons and property are not harmed in the event of an error, malfunction or unexpected operation of the INDICUS Licensed Software or Solutions. There can be no assurances whatsoever that the systems such as the Licensed Software will protect any individual or his or her property from harm. Therefore, appropriate safety precautions must always be taken when operating or maintaining devices/equipment connected to the Licensed Software. INDICUS assumes no responsibility or liability for any injury or damage to any persons or property resulting from Licensee’s or its customers’ use of the Licensed Software.
- HIGH RISK APPLICATIONS
Unless INDICUS has provided its express written consent for each component of the License Software, Licensee will make reasonable business efforts to ensure that it is not used in any application in which the failure of the Licensed Software could lead to death, personal injury or severe physical or property damage, including, without limitation, environmental damage, operation of nuclear facilities, mass transit systems, aircraft navigation or aircraft communication systems, air traffic control, weapon systems and direct life support machines, (collectively, “High-Risk Applications”). INDICUS EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION OF FITNESS FOR HIGH-RISK APPLICATIONS.
Licensee shall indemnify and hold harmless INDICUS from and against all losses, claims, damages or other causes of any nature or kind whatsoever (including reasonable attorney’s fees) arising directly or indirectly out of third party claims concerning (i) a breach of any of Licensee’s obligations, covenants, representations or warranties contained herein; (ii) Licensee’s selection of, transactions and/or agreements with any party that is an authorized INDICUS reseller or distributor, systems integrator or trainer, or any other third party; (iii) any combination of the Licensed Software, or any component of it, with any other software developed by Licensee or with any other product, equipment, device, system or data not supplied by INDICUS, and (iv) the negligence or intentional misconduct of Licensee or Licensee’s officers, employees, agents or contractors. Licensee agrees not to interpose any cross-claim, third party claim or similar claim against INDICUS based on a claim, suit, action or proceeding, threatened or commenced against Licensee related to the Licensed Software and arising out of any matter other than a matter, if any, for which INDICUS has agreed to indemnify Licensee under a separate agreement signed by INDICUS.
- TERM AND TERMINATION
Licensee must not remove or alter the “PROJECTION” Logo and “Powered by Contineo” mark which identifies that the Licensed Software is built by using the Contineo Platform. Such branding need not be done for end users which are marked as white-labelled in the Purchase Order as expressly agreed to by INDICUS in writing. White-labelled shall mean specific customers without any branding/logo/identifier.
- GENERAL PROVISIONS
- Export – Software, including technical data, is subject to Indian export control laws and its associated regulations, and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such regulations and acknowledges that Licensee has the responsibility to obtain such licenses to export, re-export, or import the Licensed Software. The Licensed Software may not be used, sold, resold, sublicensed, diverted, transferred, reshipped, or otherwise exported or re-exported: (i) in, into or through any country designated as a terrorist supporting country by the Indian government or any of its agencies; (ii) in, into or through any country for which India has an embargo or with which India maintains comprehensive trade controls; (iii) to or by a national or resident of the countries described in (i) or (ii); or (iv) to or by any party included in the India’s Denied Persons List, Entity List or Unverified List; or the Specially Designated Global Terrorists, Specially Designated Narcotics Traffickers, Specially Designated Narcotic Traffickers, or Specially Designated Terrorists List; or the Designated Foreign Terrorist Organizations or Debarred Persons List; or is otherwise designated by the Indian government or any of its agencies as a party with which it is unlawful to do business.
- Force Majeure – Licensee shall not hold INDICUS and/or its partner responsible for any delay or failure of performance to the extent directly caused by strike, riots, fire, flood, pandemic, endemic, government orders, lock down, act of Government, insurrection, embargoes, failure of carriers, inability to obtain materials or transportation facilities, acts of God or of the public enemy, acts of terrorism or other causes beyond INDICUS and/or its partner, irrespective of whether the cause could be alleviated by the payment of money.
- Dispute Resolution; Arbitration – If for any reason any dispute(s) cannot be resolved amicably by the Parties, both parties shall be free to refer such dispute to the sole Arbitrator mutually appointed by both parties and the venue of the arbitration shall be Pune, India and the language of arbitration shall be English. The arbitration shall be governed by and conducted as per the laws of Union of India. The arbitration proceedings shall be held in accordance with the Arbitration and Conciliation Act, 1996, or any subsequent enactment or amendment thereto (the “Arbitration Act”). Within fifteen (15 days after appointment, the arbitrator shall hold an arbitration proceeding to resolve the dispute and render a final decision with respect to the disputes within ninety (90) days, which decision shall be binding upon the parties. Each party shall bear the cost of preparing and presenting its case. The cost of arbitration, i.e., fees and expenses of the arbitrator, shall be shared equally by the parties unless the award otherwise provides.