VIDWATH END USER LICENSE AGREEMENT (EULA)
Agreement (“EULA”) is between the VIDWATH INNOVATIVE SOLUTIONS PVT LTD (Hereinafter VIDWATH) and the end user who has purchased the Software "Licensee" either as an individual, a single corporation, or as multiple legal entity that purchases the applicable Software "Licensee", and is effective from the date of the applicable Transaction Document, as defined below the Licensee agree as follows:1.0 Definitions
1.1 “Affiliate” means any entity controlled by, controlling, or under common control with a party to this EULA. May Control exist through ownership, directly or indirectly.
1.2 “Claim” means claims, suits, actions or proceedings brought against Licensee in a court of competent jurisdiction by a third party which allege an infringement of the third party’s patent, copyright, or trade secret rights of which is aware existing under the laws of the Covered Countries;
1.3 “Documentation” means user guides, operating manuals, and release not in effect as of the date of delivery of the applicable Software, made generally available by VIDWATH;
1.4 “License Documents” means this EULA including any addenda, the License Model Schedule, all Transaction Documents (including pricing information),Documentation, the document entitled Third Party notifications available and any other documents provided by VIDWATH setting out permitted uses of the Software;
1.5 “License Fees” means the non - refundable fees payable by Licensee to VIDWATH with respect to the granting of Software Licenses;
1.6 “License Model” means the description of the conditions, limitations and restrictions associated with the Software License which govern the use of the Software;
1.7 “Physical Media” means the physical media or hard ware containing or enabling Software;
1.8 “Reseller" means an authorized VIDWATH reseller;
1.9 “Software” includes software products, Documentation, and Support Software licensed to Licensee under this EULA, including all copies made by Licensee;
1.10 “Software License” means a license for the Software granted under this EULA to the Licensee;
1.11 “Support Software” means all maintenance and support software, updates, upgrades, patches, fixes or new versions of the Software provided to Licensee pursuant to a VIDWATH maintenance and support program, together with all related Documentation provided to Licensee pursuant to such program;
1.12 “Taxes” means the sales, use, consumption, goods and services, and value - added taxes imposed by the appropriate governments arising out of granting of licenses and delivery of Software under this EULA, except taxes imposed on VIDWATH's income;
1.13 “Third Party Software” means software products owned and licensed directly by third parties to the end user;
1.14 “Transaction Document” includes:
a)a written order schedule signed by both parties which references this EULA,
b)quotation issued by VIDWATH and signed by the Licensee,
c)an invoice issued by VIDWATH, or
d)any other document that references this EULA and is agreed to by VIDWATH in writing. If and to the extent of any inconsistency between two or more Transaction Documents, the priority of the Transaction Documents will be interpreted in the order listed above. All Transaction Documents are governed by this EULA.
1.15 “Information” means and includes the information collected from the end users and information related to the company.2.0 Ownership of the Software
2.1 Ownership. None of the Software is being sold. All ownership, intellectual property, and other rights and interests in the Software remain solely with VIDWATH, its Affiliates or its licensors. The source code of the Software is a trade secret of VIDWATH, its Affiliates or its licensors, and is their confidential information.3.0 License Grant
3.1 Grant of License. Except as otherwise stated in the License Documents and subject to Licensee’s payment of the License Fees and Taxes in full, VIDWATH grants to Licensee a worldwide, nonexclusive, perpetual ( unless stated to be a time limited term ), internal business use license (unless otherwise stated in the License Model Schedule) to download, install and execute the Software identified in the applicable Transaction Document subject to the License Models, restrictions, quantities, conditions, and limitations stated in the License Documents.
3.2 Applicable License Models. The License Model and any restrictions for the Software will be stated in the Transaction Document . If no License Model or restrictions are specified in the Transaction Document , the License Model (and any capacities) for which VIDWATH has been paid License Fees will apply .
3.3 Allocation of Licenses to Affiliates. Unless prohibited under the applicable License Document , the Licensee may allocate Software Licenses to its Affiliates, provided :
(a) the Licensee remain s responsible for the Affiliate ’s compliance with the License Documents; and
(b) The Licensee is liable for any breach of the License Documents by an Affiliate.4.0 Authorized Copies
4.1 Software and Documentation. Licensee only with prior written permission from VIDWATH can make copies of the Software necessary for it to use the Software as licensed. Each copy of the Software made by Licensee must contain the same copyright and other notices that appear on the original copy. Licensee will not modify the Documentation. Documentation may:
(a) only be used to support Licensee’s use of the Software;
(b) Not be republished or redistributed to any unauthorized third party; and
(c) Not be distributed or used to conduct training for which Licensee, or any other party, receives a fee. Licensee will not copy any system schema reference document related to the Software.5.0 Restrictions
5.1 General Restrictions. Except as provided in the License Documents , Licensee will not and will not permit any Other party to :
(a) assign, transfer, sublicense, publicly display or perform, or redistribute the Software to any third party in whole or in part;
(b) Rent or use the Software for service bureau or time - sharing purposes or in any other way allow third parties to exploit the Software;
(c) Charge a fee to any party for access to or use of the Software; or use the Software in a manner inconsistent with the License Documents.
(d) Licensee will not disclose results of any benchmark or other test run on the Software Except as expressly permitted under applicable law.
(e) Licensee will not modify, adapt, translate, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Software or any confidential information or trade secret.
5.2 Derivative Works. Licensee is prohibited from creating any change, translation, addition, extension, upgrade, update, improvement, new version, or other derivative work of the Software. Notwithstanding the above, if any of the Software is provided to the Licensee in source code format (or any Other format that can be modified), the Licensee may modify such portion of the Software for the sole purpose of using the Software in accordance with this EULA and VIDWATH will solely own all modified portions and Licensee assigns all ownership rights in the modifications to VIDWATH.
5.3 Interfacing and Interactive Software. Licensee may not permit any software products not licensed by VIDWATH to interface or interact with the Software, unless accomplished through the use of application program interfaces provided by VIDWATH.6.0 Ordering Software Licenses
6.1 Direct Orders. If Licensee orders Software directly from VIDWATH, the Software must be identified on a Transaction Document acceptable to VIDWATH.
6.2 Orders through an VIDWATH Reseller. Software Licenses ordered through a Reseller are governed by the license grant set out in this EULA and the License Model description set out in the License Model Schedule . The License Model will be stated in an order document between Licensee and Reseller. If Reseller does not notify Licensee of the correct License Model, then the License Model for which VIDWATH has been paid License Fees will apply.
6.3 Risk of Loss and Shipping Terms. The Software is deemed delivered on the earlier of
(a) when it is made available by VIDWATH for electronic download , or
(b) When VIDWATH delivers the Software on Physical Media. Title to the Physical Media and all risk of loss for the Physical Media will pass to Licensee when delivered by VIDWATH to the shipping dock of the VIDWATH shipping facility.
6.4 Invoicing and Payment. VIDWATH may invoice Licensee for License Fees and Taxes upon receipt of payment from licensee. All License Fees and Taxes due to VIDWATH by Licensee are due and payable before subscription and upon which Licensee’s received an invoice from VIDWATH. License Fees include Taxes which are the responsibility of Licensee. Licensee is responsible for paying the full Licensee Fees to VIDWATH regardless of any Taxes Licensee is required to withhold or deduct. All License Fees and Taxes due to VIDWATH under this EULA are payable in the currency specified in the Transaction Document, i.e INR,
6.5 Over Usage. VIDWATH may invoice Licensee for fees and Taxes payable by Licensee due to use of or access to the Software in excess of the number or type of Software Licenses granted by VIDWATH .
6.6 Licensee Affiliate Orders. Licensee’s Affiliates that order Software Licenses are bound by the terms and conditions of this EULA as if it were the Licensee. Licensee and its Affiliates are jointly and severally liable to VIDWATH for any breach of this EULA.
6.7 VIDWATH Affiliate Orders. VIDWATH Affiliates may fulfill orders pursuant to a Transaction Document in which case the VIDWATH Affiliate is bound by all of the terms and conditions of this EULA as if it were VIDWATH.7.0 VIDWATH Support and Maintenance.
7.1 VIDWATH Support and Maintenance Program. All Support Software provided to Licensee under VIDWATH maintenance or support program is governed by this EULA. The provision of maintenance and support services by VIDWATH will be governed by the then current version of the applicable VIDWATH software maintenance program.8.0 Audits and Noncompliance.
8.1 Audit. During the term of this EULA and for 24 months after, Licensee will maintain electronic and other records sufficient for VIDWATH to confirm that Licensee has complied with this EULA. Licensee will promptly and accurately complete and return (no less than 30 days) any self - audit questionnaire s, along with a certification by an authorized representative of Licensee confirming that Licensee ’s responses to the questionnaire accurately and fully reflect Licensee's usage of the Software. Furthermore VIDWATH may once per year audit Licensee’s records and computer systems (including servers, databases, and all other applicable software and hardware) to ensure Licensee have complied with this EULA. Licensee shall cooperate with VIDWATH’s audit team and promptly and accurately respond to, database queries, location information, system reports, and Other reports requested by VIDWATH and provide a certification by an authorized representative of Licensee confirming that information provided by License e accurate reflects Licensee's usage of the Software
8.2 Conduct. Audits will be conducted during regular business hours and will not interfere unreasonably with Licensee’s business. VIDWATH will provide Licensee with 7 days prior notice of each audit. Licensee will allow VIDWATH to make copies of relevant Licensee records. VIDWATH will comply with all applicable data protection regulations.
8.3 Noncompliance. If Licensee is not in compliance with the Software Licenses, Licensee will be deemed to have acquired additional Software Licenses at VIDWATH’s then - current list price to bring Licensee into compliance, and Licensee must immediately pay:
(a) the applicable License Fees and Taxes, and
(b) maintenance and support fees covering
(i) the period Licensee was not in compliance with the Software License; and
(ii) the first year maintenance and support fees on any additional Software Licenses. If Licensee has failed to comply with the License Documents, Licensee will reimburse all costs incurred by VIDWATH in performing the audit. Compliance with the License Documents is the sole responsibility of Licensee.9.0 Limited Warranties
9.1 Limited Software Warranty. VIDWATH warrants to Licensee that Software:
(a) Will be free of all known viruses at the time of first delivery; and
(b) Will perform substantially in accordance with its accompanying Documentation for 60 days from the date of first delivery. VIDWATH ’s entire liability, and Licensee's sole remedy, for each breach by VIDWATH of the warranty in:
(i) clause (a) is limited to requiring VIDWATH to deliver a replacement copy of the Software to Licensee free of known viruses; and
(ii) Clause (b) is limited to requiring VIDWATH to correct or work around the portion of the Software giving rise to such breach within a commercially reasonable time, failing which VIDWATH will refund all License Fees attributable to the portion of the Software giving rise to the breach.
9.2 Warranty Exclusions. The warranties do not apply to any breach caused by:
(a) any change to the Software , except where the changes were made by VIDWATH through Support Software ;
(b) Licensee's failure to provide a suitable installation or operating environment for the Software;
(c) use of the Software on or caused by software , firmware, computer systems, data, technology or a hardware platform not approved by VIDWATH in writing;
(d) Any telecommunications medium used by Licensee;
(e) Failure of Licensee or user to comply with the Documentation; or
(f) Failure of Licensee to report a warranty claim within the warranty period. VIDWATH does not warrant that the Software is error - free or will operate without interruption
(g) Any cyber security breach where the computing environment, electronic communication systems, hosting servers, server farms, and such other electronic computing infrastructure where VIDWATH is hosted gets compromised to any type of security vulnerability as a result of which VIDWATH software’s and applications are also effected
9.3 WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN THIS SECTION , VIDWATH AND VIDWATH’S LICENSORS MAKE NO REPRESENTATIONS AND DISCLAIM ANY AND ALL EXPRESS , IMPLIED , OR STATUTORY WARRANTIES AND CONDITIONS , WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE , NON - INFRINGEMENT, OR THE ADEQUACY OF THE SOFTWARE TO PRODUCE A PARTICULAR RESULT .
9.4 Inability to Exclude Warranties. If a jurisdiction applicable to this EULA restricts the exclusion of certain implied warranties, limitations on how long an implied warranty may last, or the exclusion or limitation of incidental, consequential , or special damages :
(a) each warranty which cannot be excluded is limited in time to 60 days from the date of first delivery of the Software; and
(b) VIDWATH’s total liability to Licensee for breach of all such warranties is limited to the amount stated in the Limitation of Liability section.10.0 VIDWATH Infringement Indemnity
10.1 Infringement Claims: VIDWATH will defend Licensee from any Claim , to the extent the Claim arises solely as a result of Licensee's use of the Software in accordance with the License Documents , and provided the alleged infringement was not caused by :
(a) Licensee’s failure to incorporate a Software update or upgrade that would have avoided the alleged infringement ;
(b) The modification of the Software by any party Other than VIDWATH ; or
(c) The combination or use of the Software with software, hardware, firmware, data, or technology not licensed to Licensee by VIDWATH or approved by VIDWATH in writing.
10.2 Exclusions. VIDWATH’s obligation s in the this section are conditioned upon:
(a) Licensee notifying VIDWATH in writing within 10 days of Licensee becoming aware of a Claim;
(b) Licensee not making an admission against VIDWATH ’s interests;
(c) Licensee not agreeing to any settlement of any Claim without the prior written consent of VIDWATH; and
(d) Licensee, at the request of VIDWATH, providing all reasonable assistance to VIDWATH in connection with the defense , litigation, and settlement by VIDWATH of the Claim; and
(e) VIDWATH having sole control over the selection and retainer of legal counsel, and over the litigation or the settlement of each Claim. VIDWATH will indemnify Licensee from any judgment finally awarded, for which all avenues of appeal have been exhausted or any final settlement in connection with any Claims, provided all the conditions of this section are satisfied.
10.3 Licensee's Continued Use. If the Software becomes the subject of a Claim, VIDWATH will, in its absolute discretion, either
a) obtain a license for Licensee to continue using the Software ,
b) replace or modify the Software without unreasonable degradation in functionality or
c) Terminate the Software License and refund the unamortized portion of the License Fees received by VIDWATH and attributable to the infringing portion of the Software, based on a 3 year straight line amortization. VIDWATH’s entire liability and Licensee’s sole and exclusive remedy with respect to any Claims are limited to the remedies set out in the VIDWATH Infringement Indemnity section11.0 Limitation of Liability
11.1 EXCLUSION OF DAMAGES. SUBJECT TO SUB SECTION 11.4 BUT NOTWITHSTANDING ANY BREACH BY VIDWATH (INCLUDING FUNDAMENTAL BREACH) OR TERMINATION OF THIS EULA, VIDWATH IS NOT LIABLE TO LICENSEE OR TO ANY OTHER PARTY FOR:
(A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY, OR PUNITIVE DAMAGES; OR
(B) ANY LOST SALES, LOST REVENUE, LOST PROFITS, LOST OR CORRUPTED DATA, OR REPROCUREMENT AMOUNT.
11.2 LIMITATION OF LIABILITY. SUBJECT TO SUB SECTION 11.4, VIDWATH’S AGGREGATE LIABILITY TO LICENSEE WILL NOT EXCEED THE TOTAL AMOUNT OF LICENSE FEES PAID TO VIDWATH UNDER THE RELEVANT TRANSACTION DOCUMENT. THE PARTIES WOULD NOT HAVE ENTERED INTO THIS EULA WITHOUT THIS SECTION.
11.3 DISCLAIMER. THE LIMITATIONS IN THIS SECTION APPLY:
(A) TO LIABILITY FOR NEGLIGENCE;
(B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, EQUITY, AT LAW, STRICT PRODUCT LIABILITY, OR OTHERWISE;
(C) EVEN IF VIDWATH IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND
(D) EVEN IF LICENSEE’S REMEDIES FAIL IN THEIR ESSENTIAL PURPOSE. IF THE APPLICATION OF THIS SECTION IS LIMITED BY LAW VIDWATH’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
11.4 NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY FOR:
(I) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE;
(II) FRAUD OR DECEIT; OR
(III) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY APPLICABLE LAW.12.0 Termination
12.1 Termination for Default. Either party may terminate this EULA if the other party:
(a) becomes insolvent; and
(b) has a receiver or receiver manager appointed with respect to it or any of its assets. Without prejudice to each right or remedy of a non - breaching party, e ither party may terminate this EULA for material breach by written notice, effective 10 days after notice unless the other party first cures the breach.
12.2 Effect of Termination or Expiration. Upon any termination of this EULA or expiration of a term license :
(a) all Software Licenses will immediately terminate;
(b) Licensee will immediately cease all use of the Software ; and
(c) Licensee must either deliver to VIDWATH or destroy all copies of Software, Documentation , and VIDWATH confidential information in Licensee’s possession or control. Within 15 days after termination, an authorized representative of Licensee must certify in writing that all copies have been delivered to VIDWATH or destroyed. Any terms in this EULA which by their nature extend beyond termination or ex piration of this EULA will remain in effect until fulfilled.13.0 Miscellaneous Provisions
13.1 Confidentiality.s Information exchanged under this EULA will be treated as confidential if identified as such at disclosure or if the circumstances of disclosure would reasonably indicate such treatment. Confidential information may only be used for the purpose of fulfilling obligations or exercising rights under this EULA and may only be shared with employees, agents, or contractors with a need to know such information. Confidential information will be protected using a reasonable degree of care to prevent unauthorized use or disclosure during the period the information remains confidential or a trade secret. These obligations do not cover information that
(a) was known or becomes known to the receiving party without obligation of confidentiality;
(b) is independently develo ped by the receiving party or
(c) is required to be disclosed by law or a governmental agency.
13.2 Automated Verification. The Software may contain or require a license key to prevent unauthorized installation or to enforce limits of the Software License, and may contain devices or functionality to monitor Licensee’s compliance with this EULA.
13.3 Developer Tools. VIDWATH is not responsible or liable for Licensee’s development or use of additional software code or software products (“Licensee Software”) using software developer tools licensed by VIDWATH and Licensee will defend and indemnify VIDWATH against any claims, damages, costs, losses or expenses related to the development or use of the Licensee S oftware .
13.4 Independent Contractors. VIDWATH and Licensee are independent contractors. Neither party has any authority to bind the other in any manner.
13.5 Waiver, Amendment, Assignment. Any amendment of this EULA must be in writing and signed by both parties. Licensee may not assign , transfer , or sublicense any portion of its interests, rights, or obligations under this EULA by written agreement, merger, consolidation, change of control, operation of law, or Otherwise, without the prior written consent of VIDWATH. Neither party will be deemed to have waived any of its rights under this EULA by lapse of time or by any statement or representation Other than by a written waiver by a duly authorized representative. No waiver of a breach of this EULA will constitute a waiver of any prior or subsequent breach of this EULA. An assignment in contravention of this sub section will be null and void. Except to the extent identified in this subsection, this EULA will be binding upon and inure to the benefit of the respective su ccessors and assigns of the parties.
13.6 Governing Law and Arbitration. This EULA shall be governed by the laws of India excluding its conflicts or choice of law rules. Except for injunctive relief required by VIDWATH to protect its intellectual property, any dispute or difference whatsoever arising between the parties out of or relating to the construction, meaning, scope, operation or effect of this Agreement or the validity or the breach thereof, the parties to this Agreement shall attempt in the first instance to reso lve such dispute through friendly consultation or mediation.
13.7 If the dispute cannot be resolved in the above manner within thirty (30) days after one party has issued a written notice to the Other party to commence consultations, either party may submit the dispute to the Info-Legal Centre for Arbitration and Mediation (“ ILCAM ”) for arbitration in accordance with the Arbitration & Conciliation Act, 2015 .
13.8 The authority to appoint the arbitrator(s) shall be the ILCAM in accordance with the said rules, which rules are deemed to be incorporated by reference in this section. The Arbitral Tribunal shall comprise of a sole arbitrator, who shall be appointed by VIDWATH.
13.9 The Arbitrators shall be retired judges or Senior Advocates practicing in the Indian courts.
13.10 The seat of arbitration proceedings shall be Mysore and the language of the arbitration shall be English.
13.11 The arbitral award shall be final and binding upon the parties. Pending arbitration of such dispute, each party shall continue to perform its obligations under this Agreement except for the matters in dispute.
13.12 All arbitration proceedings conducted pursuant to this section shall be confidential, and all information disclosed by a party in, or otherwise relating to, such arbitration proceedings shall be treated as confidential information.
13.13 Courts in Bangalore shall have jurisdiction to hear and decide matters arising out of or in relation to the arbitration.
13.14 Force Majeure. Except for payment and confidentiality obligations, or protection of intellectual property, neither party is responsible for any delay or failure in performance of this EULA to the extent due to causes beyond its reasonable control.
13.15 Severability. If any provision of this EULA is deemed contrary to applicable law or unenforceable by a court of competent jurisdiction, the provision will be severed from this EULA and all remaining provisions will continue in full force.
13.16 Press Release. VIDWATH may refer to Licensee’s relationship with VIDWATH in a public press release or marketing materials .
13.17 Attribution Notices. Licensee will not remove, modify, obscure, resize, or relocate any ownership, attribution, or branding notices from the Software.
13.18 Resale of Third Party Software. The use of any Third Party Software resold by VIDWATH to the Licensee will be governed by a license agreement between the Third Party Software owner and the Licensee. VIDWATH does not provide any warranties related to the Third Party Software. VIDWATH has no liability or obligation to the Licensee related to the Third Party Software.
13.19 Entire License Agreement. The License Documents set forth the entire agreement between the parties with respect to this subject matter, and supersede all other related oral and written agreements and communications between the parties. Neither party has relied upon such other agreements or communication ns . Any purchase order terms which purport to amend or modify terms of the License Documents, or which conflict with the License Documents are void.
13.20 Third Party Rights. This EULA does not confer a benefit on, and is not enforceable by, any person or entity who is not a party to this EULA.
13.21 Legal Review and Interpretation. Both parties have had an opportunity for legal review of the License Documents. The parties agree that the License Documents result from negotiation between the parties. The License Documents will not be construed in favor of or against either party by reason of authorship. The headings used in this EULA are for convenience only. The term section refers to all subsections below a section heading (i.e. 3.0) and the term subsection refers to sequentially numbered subsections following a section (i.e. 3.1).
13.22 Notices. Any notice under this EULA that must be given by a party in writing is deemed effective when sent either:
(a) vi a certified or registered mail, postage prepaid, or
(b) via express mail or nationally recognized courier service to the Other party’s address specified in this EULA or on the most recent Transaction Document . Notices to VIDWATH will also be sent to VIDWATH’s general counsel at # 1466/1, 1 st Floor 3rd cross, Thyagaraja road, Mysore -570024, Karnataka, India.