End User License Agreement (“EULA”)
PLEASE READ THIS EULA CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING LICENSOR'S APPLICATION. BY DOWNLOADING, INSTALLING AND USING THE APPLICATION, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT DOWNLOAD, INSTALL AND/OR USE THE APPLICATION AND, IF PRESENTED WITH THE OPTION TO "AGREE" OR "DISAGREE" TO THE TERMS, CLICK "DISAGREE".
- “Device” shall mean a computer, tablet or phone upon which End-User shall run the Application.
- “Third Party Application” shall mean software, including but not limited to operating systems, owned or licensed by a third party that is supplied to End-User by Licensor and which is not branded as Licensor software, and not integrated into the application software.
- " Application" shall mean all products created by triton algorithms pvt. ltd. created and owned by Licensor, including without limitation the application software plus any other software (including Third Party Application), in object code form only, and any application templates, if any supplied by Licensor pursuant to this Agreement. If no operating system software is included in the software provided under this Agreement, End-User must make provision for any required operating system software licenses.
- “End-User” shall mean the end-user, i.e. the single entity or individual downloading, installing and using the Application.
- “Licensor” shall mean triton algorithms pvt. ltd. having principle place of business at A-1 Saurabh, Sahaji Raje Road, Vile Parle, Mumbai 400057.
- End-User is granted only a personal, non-assignable, non-transferable, non-commercial (without the rights to create derivative works), non-exclusive license to install and use one copy of the Application only on a Device.
- The trial version (if any) of the Application may be installed and used by End-User for the sole purpose of trying and evaluating Application.
- The trial version(if any) of the Application may be installed and used by End-User on single system.
- A single-use license allows End-User to activate two copies of the Application on one qualified computer, tablet or phone for which it is designated and that are in the sole possession of End-User.
- The single-use license does not allow the Application to exist on more than one Device at a time.
- The limited right to use granted to End-User to use any product is not a sale of the Application or of any copy thereof.
- No other copies shall be made unless authorized in writing by Licensor. Licensor has the right to terminate this Agreement and to take legal action if the terms of this Agreement are violated. Licensor also has the right to trace serial numbers at any time and in any reasonable manner.
- End-User may not reverse engineer, decompile or reverse compile or disassemble, re-engineer or otherwise modify the software.
- The Application, comprising proprietary trade secret information of Licensor and/or its licensors, shall be held in confidence by End-User and protected from copying or disclosure to third parties.
- No title to the intellectual property is transferred.
- All rights and benefits afforded to Licensor under this Agreement shall apply equally to the owner of the Third Party Application and its licensors (collectively, the “Third Parties”) with respect to the Third Party Application.
- The Third Parties are intended third party beneficiaries of this Agreement.
- The provisions of this Agreement relating to the Application, as the same incorporate Third Party Application, are made expressly for the benefit of, and are enforceable by, the Third Parties.
- The Third Parties retain title to the Third Party Application.
- Unless the Third Parties extend a pass-through warranty covering the Third Party Application to End-User, all Third Party Application is provided “AS IS” without warranty of any kind, and the Third Parties disclaim all warranties, either express or implied, including but not limited to the implied warranties of merchantability, title, non-infringement or fitness for a particular purpose with regard to the Third Party Application. The Third Parties shall not have any liability for special, indirect, punitive, incidental or consequential damages.
- The Licensor logos, product names, software, manuals, documentation, and other support materials are either copyrighted, trademarked, or owned by Licensor as trade secrets and/or proprietary information. End-User agrees not to remove any product identification or notices of such proprietary restrictions from the Application. Licensor retains exclusive ownership of the Application and all printed materials. All techniques, algorithms, and processes contained in the program or any modification or extract thereof, constitute trade secrets and/or proprietary information of Licensor and will be protected by End-User. You may not modify, adapt, translate, reverse, engineer, disassemble, or create derivative works based on the Application or any documentary materials
- IF CUSTOMER TRANSFERS POSSESSION OF ANY COPY OF THE LICENSED APPLICATION TO ANOTHER PARTY WITHOUT WRITTEN CONSENT OF Licensor, THIS LICENSE IS AUTOMATICALLY TERMINATED. Any attempt otherwise to sublicense, assign or transfer any of the right, duties or obligations hereunder is void.
- Upgrades, Updates and Fixes: Licensor may provide End-User, from time to time, with Upgrades (a material amendment in the Application, which contains new features and or major performance improvements and shall be marked as a new version number), Updates (a minor amendment in the Application, which may contain new features or minor improvements and shall be marked as a new sub-version number) or Fixes (a minor amendment in The Application, intended to remove bugs or alter minor features which impair the Application's functionality. A fix shall be marked as a new sub-sub-version number), and according to his sole discretion.
- End-User hereby warrants to keep the Application up-to-date and install all relevant updates and fixes, and may, at his sole discretion, purchase upgrades, according to the rates set by Licensor. Licensor shall provide any update or Fix free of charge; however, nothing in this Agreement shall require Licensor to provide Updates or Fixes.
- Support: Application is provided under an AS-IS basis and without any support, updates or maintenance. Nothing in this Agreement shall require Licensor to provide End-User with support or fixes to any bug, failure, mis-performance or other defect in the Application.
- Bug Notification: End-User may provide Licensor of details regarding any bug, defect or failure in the Application promptly and with no delay from such event; End-User shall comply with Licensor's request for information regarding bugs, defects or failures and furnish him with information, screenshots and try to reproduce such bugs, defects or failures.
- Feature Request: End-User may request additional features in Application, provided, however, that (i) End-User shall waive any claim or right in such feature should feature be developed by Licensor; (ii) End-User shall be prohibited from developing the feature, or disclose such feature request, or feature, to any 3rd party directly competing with Licensor or any 3rd party which may be, following the development of such feature, in direct competition with Licensor; (iii) End-User warrants that feature does not infringe any 3rd party patent, trademark, trade-secret or any other intellectual property right; and (iv) End-User developed, envisioned or created the feature solely by himself.
- No-Warranty: END-USER ASSUMES THE ENTIRE RISK AS TO THE USE, QUALITY AND PERFORMANCE OF THE APPLICATION. THE APPLICATION AND ACCOMPANYING WRITTEN MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED OF ANY KIND AND LICENSOR SPECIFICALLY DISCLAIMS WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGMENT OF ANY THIRD PARTY RIGHTS. NO ORAL OR WRITTEN ADVICE GIVEN BY LICENSOR, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY AND LICENSEE MAY NOT RELY UPON SUCH INFORMATION OR ADVICE.
- Prior Inspection: End-User hereby states that he inspected the Application thoroughly and found it satisfactory and adequate to his needs, that it does not interfere with his regular operation and that it does meet the standards and scope of his computer systems and architecture. End-User found that the Application interacts with his/her development, website and server environment and that it does not infringe any of End User License Agreement of any software End-User may use in performing his/her services. End-User hereby waives any claims regarding the Application's incompatibility, performance, results and features, and warrants that he inspected the Application.
- Any modification to the Application by the End-User without the express written consent of Licensor shall void the warranty.
- WITH RESPECT TO THE APPLICATION WHICH IS THE SUBJECT OF THIS AGREEMENT, THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO THE APPLICATION WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY. NO IMPLIED OR STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY. NO WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OF USAGE OR TRADE SHALL APPLY.
- No refunds: End-User warrants that he/she inspected the Application according to clause
- and that it is adequate to his/her needs. Accordingly, as the Application is intangible goods, End-User shall not be, ever, entitled to any refund, rebate, compensation or restitution for any reason whatsoever, even if the Application contains material flaws. Licensor can however choose to refund End-User after a written inquiry by End-User on a voluntary basis.
LIMITATION OF LIABILITY
- IN NO EVENT, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGANCE), STRICT LIABILITY, OR OTHERWISE SHALL Licensor OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUE, LOSS OF USE OF THE LICENSED APPLICATION OR ANY PART THEREOF OR ANY ASSOCIATED EQUIPMENT, DAMAGE TO ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWN TIME COSTS, OR CLAIMS OF CUSTOMER'S CUSTOMERS AND TRANSFEREES FOR SUCH DAMAGES EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- EXCEPT AS PROVIDED IN SECTION 6, INDEMNITY, IN NO EVENT, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGANCE), STRICT LIABILITY OR OTHERWISE, SHALL LICENSOR’S LIABILITY TO CUSTOMER FOR ANY LOSS OR DAMAGE ARISING OUT OF, OR RESULTING FROM THIS AGREEMENT, OR FROM ITS PERFORMANCE OR BREACH, OR FROM THE LICENSED APPLICATION OR ANY PART THEREOF, OR FROM ANY SERVICE FURNISHED HEREUNDER, EXCEED THE FEES PAID BY CUSTOMER FOR THE LICENSED APPLICATION. ALL SUCH LIABILITY SHALL TERMINATE UPON THE TERMINATION OF THE WARRANTY PERIOD AS SET FORTH IN SECTION 4.
- If Licensor furnishes End-User with advice or other assistance which concerns Application or any portion thereof supplied hereunder or any system or equipment on which any such software may be installed and which is not required pursuant to this Agreement, the furnishing of such advice or assistance will not subject Licensor to any liability, whether in contract, indemnity, warranty, tort, (including negligence), strict liability, or otherwise.
- The products to be licensed or sold hereunder are not intended for use in any nuclear or weapons production facility or activity, or other activity where failure of the products could lead directly to death, personal injury or severe physical or environmental damage. If so used, Licensor disclaims all liability for any damages arising as a result of the hazardous nature of the business in question, including but not limited to nuclear, chemical or environmental damage, injury or contamination, and End-User shall indemnify, hold harmless and defend Licensor, its officers, directors, employees and agents against all such liability, whether based on contract, indemnity, warranty, tort (including negligence), strict liability, or otherwise, regardless of whether Licensor had knowledge of the possibility of such damages.
- Licensor warrants that the Application shall be delivered free of any rightful claim for infringement of any Indian patent, copyright, trademark or trade secret. If notified promptly in writing and given authority, information and assistance, Licensor shall defend, or may settle, at its expense, any suit or proceeding against End-User so far as based on a claimed infringement which would result in a breach of this warranty and Licensor shall pay all damages and costs awarded therein against End-User due to such breach. In case the Application is in such suit held to constitute such an infringement and its use is enjoined, Licensor shall, at its expense and option, either procure for End-User the right to continued use, or replace same with a non-infringing product or part, or modify the Application so that it becomes non-infringing, or remove the software and refund the license charge pertaining thereto (less reasonable depreciation for any period of use) and any transportation costs separately paid by End-User. The foregoing states the entire liability of Licensor for patent, copyright, trademark and trade secret infringement by the Application or any part thereof.
- The indemnity under the preceding paragraph shall not apply to any use of Application in conjunction with any other product in a combination not furnished by Licensor as a part of this transaction. As to any such use in such combination, or any improper or unauthorized use, installation, or operation of the Application, Licensor assumes no liability whatsoever for patent, copyright, trademark or trade secret infringement and End-User will hold Licensor harmless against any infringement claims arising therefrom (including, but not limited to reasonable attorney’s fees).
TERM AND TERMINATION
- End-User may terminate the license granted hereunder at any time by destroying the Application together with all copies thereof and notifying Licensor in writing that all use of the Application has ceased and that the Application has been destroyed.
- If any terms and conditions of this Agreement are breached by End-User,
in addition to all other legal rights and remedies (as mentioned below),
Licensor may terminate this Agreement. Licensor may terminate this Agreement,
including End-User’s license in the case where End-User
- becomes insolvent or otherwise entered into any liquidation process; or
- exported the Application to any jurisdiction where licensor may not enforce his rights under this Agreements; or
- is in breach of any of this EULA terms and conditions and such breach was not cured, immediately upon notification; or
- is in breach of any of the terms of clause 2 to this EULA; or
- is/was otherwise into any arrangement which caused Licensor to be unable to enforce his rights under this End-User.
- Upon termination, the provisions of this Agreement which protect the proprietary rights of Licensor shall continue in force after termination. End-User shall certify in writing to Licensor that all use of the Application or the affected portion thereof has ceased.
- Sections of this Agreement shall survive any expiration or termination and remain in effect. Termination of this Agreement or any license hereunder shall not relieve End-User of its obligation to pay any and all outstanding charges hereunder nor entitle End-User to any refund of such charges previously paid.
PAYMENT TERMS AND TAXES
- In consideration of the License granted under clause 2, End-User shall pay Licensor a fee, via Credit-Card, Online Payments or any other means which Licensor may deem adequate. Failure to perform payment shall construe as material breach of this Agreement.
FORCE MAJEURELicensor shall not be responsible for failures to fulfil its obligations under this Agreement due to causes beyond its control.
GOVERNING LAWThis Agreement shall be governed by the laws of the India and shall be subject to the exclusive jurisdiction of the courts of Mumbai.
ENTIRE AGREEMENTThis Agreement constitutes the entire Agreement with respect to the subject matter hereof and supersedes all proposals, oral or written, all previous negotiations and all other communications between the parties with respect to the subject matter hereof. These terms and conditions shall prevail, notwithstanding any different, conflicting, or additional terms and conditions that may appear on any purchase order or other instrument submitted by End-User. Deviation from these terms and conditions are not valid unless confirmed in writing by an authorized representative of Licensor. The invalidity of any portion of this Agreement shall not affect the remainder of this Agreement.CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. CUSTOMER FURTHER AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN CUSTOMER AND LICENSOR AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. FURTHER, NO CHANGES OR AMENDMENT TO THIS AGREEMENT SHALL BE EFFECTIVE UNLESS AGREED TO BY WRITTEN INSTRUMENT SIGNED BY A DULY AUTHORIZED REPRESENTATIVE OF LICENSOR.