END USER LICENSE AGREEMENT

 

EULA

CITIXSYS SOFTWARE END USER LICENSE AGREEMENT

(“EULA”)

This End User License Agreement (hereinafter “EULA”) is made by and between CitiXsys Technologies Limited with offices at A-24/5, MCIE, Mathura Road, NH-2, New Delhi – 110044, India (hereinafter “Licensor/CitiXsys”) and the end user (either an individual or a single entity) (hereinafter “Licensee”) for the Software that accompanies this EULA. An amendment or addendum to this EULA may accompany the Software.

 

THE LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR USING THE SOFTWARE. IF THE LICENSEE DOES NOT AGREE, HE SHOULD NOT INSTALL, COPY, OR USE THE SOFTWARE;

1.      DEFINITIONS

1.1.    Documentation shall mean all and any electronic and written aids and specifications developed or licensed by CitiXsys in relation to the Software, for which the Licensee has acquired the right of use from time to time, and any descriptions developed or licensed by CitiXsys in relation to the Software.

1.2.    External Users shall mean all third parties for which the Licensee has acquired and paid for the right of use to limited functionality in the Software. Such third parties are persons who or entities which are not Internal Users as defined in Section 1.5 (such as, but not limited to, the Licensee’s customers, suppliers and partners).

1.3.    Excluded License shall mean any license that requires as a condition of use, modification and/or distribution of software, subject to the Excluded License, that such software or other software combined and/or distributed with such software be:

(i)         disclosed or distributed in source code form;

(ii)        licensed for the purpose of making derivative works, or

(iii)       re-distributable at no charge.

1.4.    “Full Version” of the Software means and includes:

(i)          such version of the Software which is operational upon payment of an agreed license fee;

(ii)         any version in general release of CitiXsys India’s Software, as amended from time to time by CitiXsys India/ CitiXsys;

(iii)        any new releases, versions, corrections, updates or upgrades of the Software provided by CitiXsys India;

(iv)       the Documentation, and any complete or partial copies of any of the foregoing.

1.5.    Internal Users shall mean employees or contractual workers working for the Licensee or the Licensee’s Subsidiaries which have been authorized by the Licensee to use the Software in their work for the Licensee or the Subsidiary, and for which the Licensee has acquired and paid for the right of use to the Program.

1.6.    Location shall mean the site of the Licensee as per the address given in the Agreement or any other address where the Software will be used, if any, which the Licensee shall specify in writing before the time of delivery and to which the license fee in this Agreement applies.

1.7.    Licensee shall include its successors or permitted assigns, any act or omission on behalf of the licensee giving rise to any liability in law shall include its employees, agents, or representative or any person working directly under the control of the Licensee.

1.8.    “Lite Version” of the Software means such variant of the Full Version which contains reduced functionalities and:

(i)         Which is downloadable, subject to CitiXsy India’s permission/license, without payment of any fee or AMC charges; and

(ii)        Details whereof are mentioned on the corporate Website of CitiXsys India (which details/specifications are subject to modification from time to time in the sole discretion of CitiXsys India).

1.9.    Proprietary Information means:

(i)         with respect to the CitiXsys (the licensor of the CitiXsys proprietary information to CitiXsys herein), the Software and Documentation, any other third party software licensed with or as a part of the Software, benchmark results, manuals, program listing, data structures, flow charts, logic diagrams, functional specifications;

(ii)        the concepts, techniques, ideas, and know-how embodied and expressed in the Software, including their structure, sequence, upgrades and organization and

(iii)       information reasonably identifiable as the confidential and proprietary information of the CitiXsys or CitiXsys India or Licensee excluding any part of the proprietary information

a.             which 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.

1.10.  “Software” means and includes the Lite Version and the Full Version.

1.11.  Subsidiaries shall mean the companies controlled by ownership of more than 50% of the shares or the voting rights in such companies.

1.12.  Upgrades, in relation to the Full Version of the Software, shall mean new/updated/changed versions of the Full Version of the Software, which CitiXsys may release from time to time. It is hereby understood that in relation to the Lite Version of the Software, an Upgrade shall refer to the conversion by the Licensee from the Lite Version to the Full Version of the Software, upon payment of the agreed license fee. It is hereby further understood that the Licensee of a Lite Version of the Software shall not be entitled to an Upgrade as defined in relation to the Upgrade for the Full Version of the Software.

1.13.  “Use” shall mean the installation, loading, storing, permitted copying, accessing, display, interaction with or transmission of the Software for the processing of the instructions contained in the System (or as the case may be the Documentation) and use of a copy of the Software up to the permitted numbers of computers.

 

2.      LICENSE GRANT

2.1.    License

(i)         Subject to section 2.1(iv), CitiXsys grants to the Licensee, a non-exclusive, non-assignable, non-transferable, license to Use, in object code form, the Full Version of the Software from a CitiXsys accepted order, on compliance with all terms and conditions of this EULA.

(ii)        CitiXsys grants to the Licensee, a non-exclusive, non-assignable, non-transferable, license to Use, in object code form, the Lite Version of the Software from a CitiXsys accepted valid license request, on compliance with all terms and conditions of this EULA.

(iii)       The manner in which the Lite Version of the Software shall be used by the Licensee is set out below:

a.             Licensee will download the application for the Lite Version of the Software,;

b.             Licensee will apply for a license and the license to the Lite Version, which will be valid for one year.

c.             The Licensee will have to renew the license every year.

d.             The Licensee shall have the option to convert the license to the Lite Version of the Software, to a license to the Full Version of the Software, on payment of the license fee and the AMC charges.

(iv)      With respect only to the Full Version of the Software, an interim license of limited period is granted for the period the Maintenance & Support is subscribed or renewed by the end-user (directly or through a Partner). Should an end-user wish to cancel the Support & Maintenance; a written notification is to be submitted to CitiXsys 3 months prior to the License Expiry. A perpetual license is released in this case to Licensee and no further Support and Maintenance is provided by CitiXsys. In the event that there is no continuity between the last Maintenance and Support Agreement which has expired and the next one that is sought to be taken by the Licensee, due to discontinuation by the Licensee, or any other reason, then, at the time of renewal of the Maintenance and Support Agreement after the gap, the Licensee shall pay to CitiXsys, 100% of the then prevailing maintenance and support fees for each and every discontinued year or part thereof in addition to the maintenance and support fees applicable for entering into such agreement. Over and above the mentioned additional fees, CitiXsys may also impose other conditions like compulsory upgrade etc. as may deemed appropriate at its sole discretion. 

(v)       The Licensee may:

a.             Install and use a copy of the Software on one personal computer or other device;

b.             Install an additional copy of the Software on a second portable device for the exclusive use of the primary user of the first copy of the Software.

(vi)      The Licensee’s right to use the Software (or any intellectual property of CitiXsys or any of its affiliates associated therewith) does not include any license, right, power or authority to

a.             create derivative works of the Software in any manner that would cause the Software or derivative work thereof, in whole or in part, to become subject to any of the terms of the Excluded License, or

b.             Distribute the Software (or any intellectual property of CitiXsys or any of its affiliates associated therewith) or derivative works thereof in any manner that would cause the Software (or any intellectual property of Licensor) or derivative work thereof to become; subject to any of the terms of the Excluded License.

c.             to reverse engineer, decompile, or disassemble the Software.

2.2.    Subsidiary Use

To the extent that the Licensee permits the Internal Users, including users in Subsidiaries, to access and use the Software only on the Location it shall be the sole responsibility of the Licensee to ensure that the stated users do not violate the terms and conditions of this EULA, and that the Subsidiaries accept to be legally bound by the terms and conditions stated in this EULA prior to granting the Subsidiaries access to the Software. Any change of location of Use will be at the sole discretion of CitiXsys and shall be effective on the receipt of extra charges as determined by CitiXsys from time to time. Failure of the Licensee to fulfill this obligation shall be deemed to be a breach of this EULA, and shall invoke termination according to Section 10.

 

3.      FUNCTIONS

3.1.    The Software is a standard product, and it shall be the responsibility of the Licensee alone to ensure prior to this EULA that the functions in the Software fulfill the Licensee’s requirements.

3.2.    The Licensee shall not permit the whole or any part of the Software to be combined with or become incorporated in any other program, without Licensor’s prior written consent. The CitiXsys may on its sole discretion adjust or otherwise modify the Application Code of the Software itself or through one of its authorized personnel to the extent that such adjustment or modification is required for the use of the Software stipulated in this EULA and to the extent that the Licensee has acquired and actually paid for such modification or adjustment performed by CitiXsys on receiving such request from Licensee.

 

4.      UPGRADES

4.1.    The Licensee may acquire Upgrades to the extent that Upgrades are issued by CitiXsys for a fee as applicable at the time of such request.  Licensee may be provided upgrades free of cost, if Licensee has a subsisting contract for maintenance and support.  It is hereby made clear that the Upgrades referred to in this section 4 shall not apply to the Lite Version of the Software. Should the Licensee be desirous of getting access to the Upgrades made available for the Full Version of the Software, Licensee shall have to convert the Lite Version license to a Full Version license by paying the then prevailing and agreed license fee and AMC charges. Thereupon, Licensee shall have the right, subject to the other terms of this section 4.1, to get access to the Upgrades.

4.2.    In connection with the implementation of the Upgrades, CitiXsys does not represent or warrant that the Licensee will be able to make full use of any adjustments or other modifications created as components in the Application Code of the Software.

4.3.     CitiXsys shall not be responsible for any damages suffered as a result of such Upgrades usage and the same is subject to Section 8. If CitiXsys chooses to issue an upgrade, the terms of this License shall apply to such upgrades and the same shall be treated as Software hereunder. Upgrades may even require that the Licensee to agree to additional or revised terms and conditions as a condition of continued use of the Software.

 

5.      PERMITTED COPYING

The Licensee shall not copy the Software for any reason whatsoever without prior written consent of CitiXsys except for making copies of the Software for archival or backup purposes, provided the backup copy is not installed or used on any computer; or to install on the test server for the purposes for testing only or as required under mandatory, statutory legislation. The use of the stated copies of the Software is subject to the terms and conditions stated in this EULA. It is clarified that all the copies of Software shall at all times be Proprietary Information of CitiXsys India

 

6.      LICENSEE’S OBLIGATION

6.1.    The Licensee undertakes not to act in a manner which is contrary to the Intellectual Property rights of the CitiXsys India/ CitiXsys in the Software and to take all necessary action to protect the Intellectual property Rights in the Software and the Software itself from any infringement.

6.2.    The licensee agrees to allow CitiXsys to use Licensee’s name and logo for all marketing activities undertaken by CitiXsys from time to time.

6.3.    The Licensee shall ensure that the Software is used by the users only for purposes as provided by CitiXsys:

(i)         All Internal Users, including Internal Users of the Subsidiaries, and

(ii)        External Users, but only for the purpose of accessing and modifying the Licensee’s data. The Licensee acknowledges that it has no right whatsoever to allow such External Users to use the Software for their own or other parties’ requirement except for herein specifically provided.

6.4.    The Licensee shall install the Software on a computer file server within the internal network for sole and exclusive purpose of

(i)         using the Software; and

(ii)        allowing for printing within the internal network.

 

7.      THIRD PARTY CLAIMS

7.1.    This section 7 applies only to the Full Version of the Software and references to the Software in this section shall be construed accordingly. Licensee agrees that this section 7 shall not, under any circumstances, apply to the Lite Version since there is no consideration for the Lite Version of the Software (which is for free) and hence, there are no warranties or obligations of CitiXsys with regard to the Lite Version. Licensee hereby specifically acknowledges and undertakes not to bring any action under this section against CitiXsys with regard to the Lite Version of the Software.

7.2.    CitiXsys may at its sole discretion defend any Infringement Claim at its expense, upon notifying the Licensee in writing that it intends to do so, CitiXsys is hereby irrevocably authorized by the Licensee, to the extent legally possible, to assume the defense of the legal suit or any proceedings brought forward against the Licensee, and may institute proceedings or enter into settlements concerning the Infringement Claim. The Licensee shall provide CitiXsys with appropriate information or assistance for such defense or settlement. The limited warranty stated in Section 8.1 and 8.2 is void if the Infringement Claim has resulted from accident, abuse, misuse, misapplication or virus.  Any modification of the Software by anyone other than CitiXsys voids the warranty on any portion of the Software modified or affected by such modification.

7.3.    In the event of a valid Infringement Claim, CitiXsys shall be entitled to

(i)         obtain; the continued right for the Licensee to use the Software, or

(ii)        bring the Infringement to an end either by modifying the Software or replacing the Software with other software which, essentially, possesses the same functions as the affected Software, or

(iii)       terminate this EULA with written notice and pay to the Licensee an amount equal to the license fee actually paid less a sum prorated for use. CitiXsys shall only be obliged to pay the stated amount to the Licensee if the Infringement Claim is actually raised against the Licensee within a period of one (1) year following the date of the Licensee’s signature of this Agreement. If an Infringement Claim is raised against the Licensee after the stated period has expired, CitiXsys shall be entitled to terminate this Agreement without payment of any amount to the Licensee The performance of Licensor’ obligations under this Section shall be Licensor’ total aggregate liability and Licensor’ entire obligation to the Licensee as a consequence of all and any Infringement Claims, and the Licensee shall have no other claims against CitiXsys or its affiliates as a result of such Infringement Claim. Upon termination of this Agreement, the Licensee shall promptly cease using the Software and fulfill the terms and conditions connected to termination as stated in Section 10.

 

8.      LIMITATION

8.1.    Not Responsible CITIXSYS or its affiliates will not be responsible in any manner under this EULA

(i)              if the Software is not used in accordance with the Documentation or instruction provided; or

(ii)             if the defect is caused by Licensee, a Modification, third-party software, or third party database CitiXsys shall not be liable for any claims or damages arising from inherently dangerous use of the software and/or third-party software licensed hereunder.

8.2.    The Licensee acknowledges that it has exercised its independent judgment in acquiring the Software and has not relied on any representation made by CitiXsys or upon any descriptions or illustrations or specifications contained in any document including catalogues or publicity material produced by CitiXsys, which has not been stated expressly in this EULA. 

8.3.    The Licensee acknowledges that once the Software has been provided no refunds of the license fee and the support and maintenance fee shall be made except as per Section 7.

8.4.    LIMITED WARRANTY FOR FULL VERSION OF THE SOFTWARE

The Licensor warrants that the FULL VERSION OF THE Software will perform substantially in accordance with the accompanying materials for a period of thirty (30) days from the date of receipt. AS TO ANY DEFECTS DISCOVERED AFTER THE THIRTY-DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. IT IS HEREBY UNDERSTOOD BY THE LICENSEE THAT THERE SHALL BE NO WARRANTY AT ALL FOR THE LITE VERSION OF THE SOFTWARE, BEING LICENSED WITHOUT ANY CONSIDERATION HEREUNDER, WHETHER UNDER LAW OR OTHERWISE AND TO THE EXTENT THAT SUCH A WARRANTY IS ATTRACTED UNDER LAW OR STATUTE, THE LICENSOR HEREBY DISCLAIMS THE SAME AND LICENSEE ACCEPTS SUCH DISCLAIMER.

 

8.5.    LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES.

Licensee’s exclusive remedy for any breach of this Limited Warranty as applicable only to the Full Version of the Software is as set forth below. Except for any refund elected by The Licensor, THE LICENSEE IS NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, if the Software does not meet The Licensor's Limited Warranty, and, to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose. The terms of Section 8. ("Exclusion of Incidental, Consequential and Certain Other Damages") are also incorporated into this Limited Warranty. Some states /jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to the Licensee. This Limited Warranty gives the Licensee specific legal rights. The Licensee may have other rights which vary from state/jurisdiction to state/jurisdiction. IT IS HEREBY CATEGORICALLY REITERATED THAT THERE SHALL BE NO WARRANTY AND HENCE NO REMEDIES FOR ALLEGED BREACH OF WARRANTY IN RELATION TO THE LITE VERSION OF THE SOFTWARE.

 

8.6.    LICENSEE’S EXCLUSIVE REMEDY.

The Licensor’s entire liability and the Licensee’s exclusive remedy for any breach of this Limited Warranty or for any other breach of this EULA or for any other liability relating to the Full Version of the Software shall be, at the Licensor’s option, from time to time exercised subject to applicable law,

(i)              Return of the amount paid (if any) for the Software, or

(ii)             Repair or replacement of the Software that does not meet this Limited Warranty and that is returned to The Licensor with a copy of the Licensee’s receipt.

The Licensee will receive the remedy elected by The Licensor without charge, except that the Licensee are responsible for any expenses the Licensee may incur (e.g. cost of shipping the Software to The Licensor). This Limited Warranty is void if failure of the Full Version of the Software has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement Full Version of the Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer, and the Licensor will use commercially reasonable efforts to provide the Licensee’s remedy within a commercially reasonable time of the Licensee’s compliance with the Licensor’s  warranty remedy procedures. IT IS HEREBY ONCE AGAIN MADE CLEAR THAT THERE SHALL BE NO WARRANTY AND HENCE NO REMEDIES FOR ALLEGED BREACH OF WARRANTY IN RELATION TO THE LITE VERSION OF THE SOFTWARE.

 

8.7.    DISCLAIMER OF WARRANTIES.

The Limited Warranty that appears above is the only express warranty made to the Licensee and is provided in lieu of any other express warranties or similar obligations (if any) created by any advertising, documentation, packaging, or other communications. Except for the Limited Warranty and to the maximum extent permitted by applicable law, The Licensor and its suppliers provide the Software and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, whether express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Software, and the provision of or failure to provide support or other services, information, software, and related content through the Software or otherwise arising out of the use of the Software. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION,CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE.

 

8.8.    EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT

PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE LICENSOR OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATON, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF THE LICENSOR OR ANY SUPPLIER, AND EVEN IF THE LICENSOR OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PROVIDED THAT IT IS UNDERSTOOD BY THE LCENSEE THAT THERE SHALL BE NO WARRANTY AND HENCE NO REMEDIES OR DAMAGES CLAIMED FOR ALLEGED BREACH OF WARRANTY IN RELATION TO THE LITE VERSION OF THE SOFTWARE.

 

8.9.    The Software is made available on an “as is” basis only and CitiXsys disclaims all other warranties whether express or implied, including but not limited to any implied conditions or warranties of merchantability and fitness for a particular purpose.

9.      TRANSFER

The Licensee shall have no right to sell/rent out/sub-license/lease or in any other way transfer or assign the right to use the Software or any right or obligation under this EULA to any third party without the prior written consent of CitiXsys. Where such consent is obtained, the transfer shall be executed according to the guidelines for such transfer set by CitiXsys. CitiXsys reserves the right to transfer its rights and obligations under this EULA in whole or in part to another company within the CitiXsys Group or a third party.

 

10.   TERMINATION

10.1.  It is expressly agreed between the parties that this agreement cannot be terminated for convenience by either party and both parties shall fulfill their obligations under this Agreement.

10.2.  The license granted by this EULA may be terminated by CitiXsys immediately without the Licensee being entitled to a refund of the paid license fee upon such termination. If Licensee:

(i)         becomes the subject of insolvency proceedings, dissolved;

(ii)        expressly or impliedly repudiates this EULA by refusing or threatening to refuse to comply with any of the provisions of this Agreement;

(iii)       fails to comply with any of the provisions of this EULA and (in the case of a failure which in the judgment of CitiXsys is capable of being remedied) does not rectify such non-compliance within 7 working days of the CitiXsys’s written notice of it; or

(iv)      convenes any meeting of creditors or passes a resolution for winding up or suffers a petition for winding up; or

(v)       has an administrative receiver or receiver appointed over the whole or part of its assets or suffers the appointment of an administrator; or

(vi)      If CitiXsys suspects that the Licensee is in material breach of this EULA; then (and in any such case) CitiXsys may without prejudice to any other of its rights or remedies and without being liable to the Licensee for any loss or damage which may be occasioned, give written notice to the Licensee terminating this EULA (and accordingly the License) with immediate effect. In such case, the Licensee shall immediately cease using the Software and promptly delete and erase and destroy the Software, including all and any copies hereof as stated in this Section 10.

(vii)     In the event the Licensee is in material breach of this agreement that includes failure in paying the License Fee in accordance with the terms and conditions of this Agreement the Licensor shall be entitled to terminate this Agreement if the said breach is not remedied within fifteen days of notification of such breach to the Licensee by the Licensor. The Licensor upon such termination will be entitled to forfeit all advances and the Licensee shall be liable to pay the full consideration amount (license fee) to the Licensor without any demur and protest. The Licensee upon such termination shall cease and desist from using Licensed Content forthwith. 

10.3.  To the extent necessary to implement the termination provisions of this EULA, each of the parties waives any right it has, or obligation that the other party may have, now or in the future under any applicable law or regulation, to request or obtain the approval, order, decision or judgment of any court to terminate this EULA.

10.4.  Upon termination the Licensee shall immediately destroy or return or dispose off any remaining copies of the Software to CitiXsys and documentation (proprietary information) in a manner specified by CitiXsys. The Licensee shall also delete and remove/uninstall from its computer system all files created by the Software. This shall include backup copy created pursuant to Section 5. Written undertaking/ acknowledgment shall be provided without any delay upon request failing which it shall be deemed that the Licensee has NOT returned/ destroyed Proprietary Information of the CitiXsys under its control and/or possession. Such refusal shall be deemed to be an infringement of the EULA as a whole and in particular of intellectual property and shall vest in the CitiXsys a right to seek damages from the Licensee on account of such infringement. The CitiXsys shall also have the right to obtain an injunction against the Licensee if this Section is violated.

10.5.  Termination pursuant to this Section shall not affect any rights or remedies, which CitiXsys may have otherwise under this license or at law and the licensee acknowledges that the indemnities acknowledged by it under this EULA shall survive the termination of this EULA.

 

11.   RELATIONSHIPS OF THE PARTIES

The parties to this EULA are independent contractors. There is no relationship of agency, partnership, joint venture, employment or franchise between the parties. Neither party has the authority to bind the other or to incur any obligations on its behalf.

 

12.   ANONYMOUS DATA COLLECTION

Licensee confirms that he has carefully read and understood the following. There is a feature in the software which enables the licensor to collect, through the internet, software usage data on an anonymous basis.  This feature is activated by default at the time of installation of software on licensee’s system.  This feature will enable licensor to collect data in an aggregated and anonymous form for statistical analysis such as data about the extent and degree of users’ interaction with the software, data about which features and events of the software are most used, data about time taken to execute an activity, data about operating system being used, data about patterns of use, data about geographical location of users, data about bugs and errors and other such general usage data.  Licensor confirms that such data will be collected and used in an anonymous form and licensee cannot be personally identified or connected to the data so collected or used.  Hence the privacy of the licensee shall not be affected in any manner.  Licensee further understands that the intent behind collection of data is only to facilitate licensor to improve the software.

Licensee understands that the software enables him to turn off this data collection feature should he wish to do so.  Licencee understands and acknowledges that until the licensee turns of this feature, the licensee shall be deemed to authorize and permit the licensor to collect the data on an anonymous basis.  Further, the licensor agrees not to raise any objection or make any claim in respect of such data collected by the licensor.

 

13.   GENERAL 

13.1.  Severability If any provision of this EULA is held to be illegal, invalid or unenforceable, such provision shall nonetheless be enforced to the fullest extent permitted by applicable law, so as to reflect the original intent of the parties, and such provision shall not affect the legality and validity of the other provisions.

13.2.  Survival Any terms of this EULA, which by their nature extend beyond the day this EULA comes to an end shall remain in effect and thus bind the parties.

13.3.  No Waiver If either party does not exercise or delays exercising, a right or remedy provided by this EULA or by law, that failure or delay will not amount to a waiver of that right or remedy by that party of its present or future rights or remedies provided by this EULA or by law.

13.4.  Export/Import Laws The Licensee will be responsible at its own expense for complying with all applicable export and import laws and regulations and tariff involved in such export/import.

13.5.  Notices All notices shall be in writing and sent to the other party at the address specified in this EULA or its last known address. Any change of address by either party during the term of this EULA shall be notified promptly to the other party. Any such notice may be delivered personally, by prepaid post or facsimile transmission.

13.6.  Entire Agreement This EULA is the complete and exclusive statement of the agreement between the parties relating to the subject matter of the Agreement and supersedes all previous communications, representations and arrangements, written or oral. The Licensee acknowledges that no reliance is placed on any representations made but not embodied in this Agreement. The printed terms and conditions of any purchase order or other correspondence and documents of the Licensee issued in connection with this EULA will not apply unless expressly accepted in writing by the CitiXsys. Except as otherwise permitted by this EULA, no change to its terms will be effective unless it is in writing and signed by persons authorised on behalf of both parties.

13.7.  Governing Law And Jurisdiction This Agreement shall be governed in accordance with the laws of India and the courts of Delhi shall have jurisdiction over any disputes arising hereunder.

13.8.  Miscellaneous Terms

(i)         This Agreement constitutes the entire agreement between the Parties and supersedes any previous agreements between the Parties whether oral or in writing regarding the subject matter hereof.

(ii)        Nothing in this Agreement shall be deemed to constitute a partnership between the Parties or constitute any party the agent of any other party for any purpose or entitle any party to commit or bind any other party in any manner or give rise to fiduciary duties by one party in favour of any other.

(iii)       This Agreement may be amended only by an instrument in writing signed by each party to this Agreement.

(iv)      If any provision embodied in this Agreement appears to be legally invalid or null, the Parties will replace such provision, considering the nature and contents of this Agreement, the way consensus is reached, the mutually known interests of both Parties as well as the other relevant circumstances, by a provision which is not unreasonably onerous to any party and approximates the meaning of the legally invalid provision as closely as possible.

(v)       The failure on the part of one party to exercise or enforce any rights resulting from this Agreement shall not be a waiver of any such rights, nor shall any single or partial exercise thereof operate so as to bar the later exercise or enforcement thereof.

(vi)      This Agreement may be entered into in two each of which, when executed and delivered, shall be an original, but all the counterparts shall together constitute one and the same instrument.

(vii)     Any notices required to be given pursuant to this agreement shall be in writing sent via registered post receipt requested, express overnight courier or by facsimile to the address of the parties hereto, or to such other address as may be specified from to time in writing in accordance with the terms of this section.

13.9.  Confidential Terms and Conditions

Each of the Parties shall at all times keep confidential and cause their respective Affiliates, directors, representatives, employees and agents, as the case may be, to keep confidential any confidential information which any such persons may acquire in relation to the transactions contemplated by this Agreement or in relation to the employees, clients, business or affairs of any other Party and shall not use or disclose such information except with the consent of the other Party. The restrictions in this Section 12.9 shall not apply to any information:

(i)     Which is at the date of this Agreement publicly available other than through breach of this Agreement by any Party;

(ii)    Which was known to the Party, as evidenced by its written records, prior to it receiving such confidential information;

(iii)   Which subsequently comes lawfully into the possession of the disclosing Party by a third party which did not require any obligation of confidentiality; or

(iv)  Which is required to be disclosed in accordance with the requirements of law, any Governmental authority, any stock exchange regulation or any binding judgment, order or requirement of any court or other competent authority.

For the purpose of this Section, “confidential information” means all the information of a confidential nature disclosed (whether in writing, verbally or by any other means and whether directly or indirectly) by a party to the other party whether before or after the date of this Agreement.

13.10.               Force Majeure

Neither party shall be held liable for any damage sustained by the other party as a direct or indirect consequence of the non-performing party being delayed, prevented or hindered in the performance of its obligations under this EULA as a result of a Force Majeure situation. The party claiming Force Majeure event will promptly notify the other in writing of the reason for the delay or stoppage (and the likely duration) and will take all reasonable steps to overcome the delay or stoppage at the earliest.

13.11.               Commencement

The Licensee shall be entitled to install and use the Software only when the terms of this EULA have been agreed to / accepted by the Licensee in accordance with the terms prescribed by CitiXsys, and, in the case of the Full Version, also only upon receipt of the applicable fee by CitiXsys. By signing this EULA, the Licensee hereby expressly accepts that any customer-specific information received by CitiXsys on the basis of the contractual relationship regulated by this EULA, i.e. concerning the Name of Licensee, Address, Tel. No., Fax No., E-mail Address, URL, Contact Name and the name of the Licensee’s supplier, may be used internally by the CitiXsys only for the purpose of internal administration of the License to the Program