Software Licence Agreement
This agreement is made the 28th day of May 2004 by and between Eastern Computers Limited (A Company incorporated under Companies Act 1956 (India) and having its administrative office at 54 Park Street, Kolkata 700 017 (herein after called “the licensor”, the expression unless repugnant to the context or specifically exempted shall include its successors and permitted assigns) of the first part and National Silk Foundation, a Society registered under the Societies Registration Act (Act XXI of 1860) having its administrative office at Bungalow No. 1, Satellite Complex, Ashram Road, Ahmedabad 380 009 (herein after called “the licensee”, the expression unless repugnant to the context or specifically exempted shall include its successors and permitted assigns) of the second part.
The licensor and the licensee are together called the parties.
Whereas the licensor has agreed to deliver to the licensee and install on the licensee’s computer certain computer programs and to grant the licensee a non-exclusive to use such programs and their associated documentation upon the terms and conditions hereinafter contained.
Therefore it is hereby agreed as follows:
In this Agreement, unless the context otherwise requires, the following words shall have the following meanings:
1. ‘The Licence’ shall mean the licence granted by the licensor in accordance with provisions of Clause 7.
2. ‘The Equipment’ shall mean the licensee’s computer for which the Licence is granted, specified by type and serial number in the Schedule and using the “XXXX” operating system.
3. ‘The Licensed Programs’ shall mean the computer programs of the licensor specified in the Schedule.
4. ‘The Program Documentations’ shall mean the operating manuals, user instructions, technical literature and all other related materials which is readable by the human eye supplied to the for helping the use of the Licensed Programs.
5. ‘The Media’ shall mean the media on which the Licensed Programs and the Program Documentation are printed or recorded as supplied to the licensee by the licensor.
6. ‘Use the Licensed Programs’ shall mean to install the Licensed Programs into and store and run them on the Equipment in accordance with the terms of this Agreement.
7. ‘The Licence Fee’ shall mean the fee for the licence and the services to be provided under this Agreement as specified in the Schedule.
8. ‘The Delivery Date’ shall mean the delivery date mentioned as per the Schedule or such extended date as may be granted in accordance with provisions of Clause 21.
9. ‘The Location’ shall mean the licensee’s computer room where the Equipment is kept as specified in the Schedule.
10. ‘The Acceptance Date’ shall mean the date on which the Licensed Programs are accepted or deemed to be accepted by the licensee in accordance with the provisions of Clause 5.
2. Products and services to be provided
The licensor hereby agrees to:
(i) grant to the licensee a non-exclusive licence to use the licensed program materials;
(ii) provide the licensed programs to the licensee and load them on the Equipment;
(iii) hand over training and operating manuals to the licensee;
(iv) provide the other services herein after described; as per the terms and conditions hereinafter contained.
(i) The Licence Fee shall be paid by the licensee on the Acceptance Date.
(ii) Licence Fee and other charges payable under this Agreement are exclusive of taxes which shall be paid by the licensee at the rate and in the manner for the time being prescribed by laws of the Republic of India.
(iii) Any amount payable by the licensee hereunder in addition to the Licence Fee shall be paid within 45 days after the receipt by the licensee of the licensor’s invoice regarding that amount.
(iv) If the licensee defaults in making any payment under this Agreement, upon the expiry of 7 days from the date on which payment becomes due, the licensor may charge interest on such sum on a day to day basis from the date or last date for payment thereof to the date of actual payment (both dates inclusive) at the rate of …… per cent from time to time in force compounded half yearly. The licensee shall pay such interest on demand from the licensor. This is without prejudice to the licensor’s other rights and remedies.
4. Delivery and installation
Once the delivery date is due the licensor shall deliver the Licensed Programs to the licensee and load the same on the Equipment at the Location. The Licensed Programs shall contain one copy of the object code of the Licensed Programs in machine-readable form only, on the storage media mentioned in the Schedule.
5. Testing and acceptance
(i) After the Licensed Programs are loaded, the licensee shall provide the licensor the requisite test data which is appropriate to test the efficiency of the Licensed Programs along with the results expected to be attained by processing such test data using Licensed Programs. Upon receiving such data along with the expected results the licensor shall process such data, in the presence of the licensee or its authorised agent, on the Equipment using the Licensed Programs by way of acceptance test within 10 days after such receipt at a time mutually convenient to the parties.
(ii) The licensee shall accept the Licensed Programs forthwith after the licensor has proved that the Licensed Programs have correctly processed the test data by attaining the expected results. The licensee shall if required by the licensor, sign an acceptance certificate in the form annexed hereto acknowledging such acceptance.
(iii) In case the licensee fails to provide any test data as aforesaid or fails to attend the acceptance tests within the said period of 10 days then the licensee shall be deemed to have accepted the Licensed Programs.
I. (a) The licensor warrants that the Licensed Programs shall after acceptance by the licensee provide the facilities and functions set out in the Specification when properly used on the Equipment. The Program Documentation shall provide adequate information and instruction to enable the licensee make appropriate use of such facilities and functions.
(b) Upon the licensor receiving any written notice from the licensee after the Acceptance Date of any breach of the said warranty then the licensor shall at its own expense and within a reasonable time after receiving such notice remedy the defect or error in question. However the licensor shall have no liability or obligations under the said warranty unless the licensor receives a written notice of the defect or error in question within 12 months from the Acceptance Date.
(c) The said warranty shall be applicable only if the licensee complies with its obligations hereunder and to there having been made no alterations to the Licensed Programs by any person other than the licensor. As far as possible the licensee shall furnish the licensor with a documented example of the defect or error.
II. The licensor shall have no liability or obligations under the said warranty other than to rectify the breaches thereof by the provisions of materials and services within a reasonable time and without charge to the licensee. If the licensor shall fail to comply with such obligations its liability for such failure shall be limited to a sum equal to the Licence Fee. The foregoing states the entire liability of the licensor, whether in contract or tort, for defects and errors in the Licensed Program Materials which are notified to the licensor after Acceptance Date.
III. The licensee acknowledges that the Licensed Programs have not been developed to suit the requirements of the licensee and that it is therefore the responsibility of the licensee to make sure that the facilities and functions described in the specification meet its requirements. The licensor shall have no liability for any failure of the Licensed Programs to provide any facility or function not specified in the specification.
IV. The express terms of this Agreement are in lieu of all warranties, obligations, conditions, terms, duties, and undertakings implied by statutory law, common law, trade usage, custom, course of dealing or otherwise, all of which are hereby excluded to the maximum extent permitted by law.
I. The licensor hereby grants to the licensee a non-exclusive licence to use the Licensed Program Materials subject to the terms and conditions hereinafter contained
II. The licensee shall utilise the Licensed Program Materials for processing its own data for its own internal business only. The licensee shall not allow any third party to use the Licensed Program Materials nor use the Licensed Program Materials for and on behalf of any third party in any manner possible.
III. The use of the Licensed Program Materials shall be limited to use on and in conjunction with the Equipment save that:
(a) In the case of any inability to use the Licensed Program Materials in conjunction with the Equipment because of it being inoperable for any reason then the Licence shall be temporarily extended without additional charge to use with any other equipment until such inability has been rectified provided that such equipment is under the direct control of the licensee. It shall be the duty of the licensee to immediately inform the licensor such temporary use and of the commencement and cessation thereof;
(b) The Licence may with the prior written permission of the licensor use the Licensed Program Materials on and in conjunction with any suitable replacement equipment, which shall be specified by type and serial number, if the use of the Licensed Program Materials on and in conjunction with the Equipment is permanently discontinued. Once such permission being granted the replacement equipment shall become the Equipment for the purposes of the Licence.
IV. The Licence shall not be deemed to extend to any programs or materials of the licensor other than the Licensed Program Materials unless specifically agreed to in writing by the licensor.
V. The licensee hereby acknowledges that it is licensed to use the Licensed Program Materials strictly in accordance with the express terms of this Agreement and not further or otherwise.
8. Duration of Licence
The Licence shall have its force from the Acceptance Date and shall continue until terminated in accordance with clause …. or as otherwise provided in this Agreement.
9. Proprietary Rights
(i) The Licensed Program and the copyright and other intellectual property rights of nature in the Licensed Program Materials are and shall remain the property of the licensor and the licensor shall have the right to grant licence to use Licensed Program Materials to third parties.
(ii) In case the licensee becomes aware of any unauthorized use of the whole or any part of the Licensed Program Materials by any person the licensee shall notify the licensor forthwith.
(iii) The licensee shall allow the licensor to check the use of the Licensed Program Materials at all reasonable occasions and for doing so the licensor and / or its authorised agent shall have the right to enter any of the licensee’s premises.
10. Intellectual Property Rights Indemnity
The licensor shall indemnify the licensee against any claim that the normal use or possession of the Licensed Program Materials infringes the intellectual property rights of any third party provided that the licensor is given immediate notice such claim, that the licensee does not prejudice the licensor’s defence of such claim and that the claim does not arise as a result of the use of the Licensed Program Materials in conjunction with any equipment not approved by the licensor. The licensor shall have the right to replace, modify, change or alter all or any part of the Licensed Program Materials so as to avoid any infringement. The foregoing declares the entire liability if the licensor to the licensee in respect of the infringement of the intellectual property rights of any third party.
11. Confidentiality of Licensed Program Materials
(i) The licensee hereby undertakes to treat as confidential all information contained or expressed in the Licensed Program Materials and the specification and all information, know-how conveyed to the licensee by training (hereinafter called ‘the information’).
(ii) The licensee shall not without the prior written permission of the licensor divulge any part of the information to any person except:
(a) the licensee’s own employees who need to know the same;
(b) the licensee’s auditors and any other persons or bodies having a right, duty or obligation to know the business of the licensee only in pursuance of such right, duty or obligation;
(c) any person who is from time to time appointed by the licensee to maintain any equipment on which the Licensed Programs are being installed only to the extent necessary to enable such person properly to maintain such equipment.
(iii) The licensee hereby undertakes to make sure that the persons and bodies mentioned in paragraphs (a), (b) and (c) of sub-clause (ii) have sufficient knowledge that the information is confidential prior to the disclosure of any part of the information and that they owe a duty of confidence to the licensor, the licensee hereby undertakes to indemnify the licensor against any loss, destruction or damage which the licensor may sustain as a result of any failure on the part of the licensee to comply with such an undertaking.
(iv) Upon knowledge of any breach of confidence by any person to whom the licensee divulges all or any part of the information, the licensee shall immediately notify the licensor and shall provide the licensor all reasonable assistance in connection with any proceedings, which the licensor may institute against such person for breach of confidence.
(v) The foregoing obligations pertaining to confidentiality shall remain in full force and effect not with standing any termination of the Licence or this Agreement.
(i) The licensee may make only so many copies of the Licensed Programs as are reasonably needed for operational security and use. All such copies and the media on which they are recorded shall belong to the licensor and the licensee shall have the obligation to make sure that all such copies bear the licensor’s proprietary notices. The Licence shall apply to all such copies as it applies to the Licensed Programs.
(ii) Only after obtaining the prior written consent of the licensor, the licensee shall make any copy of the Program Documentation.
The licensee shall during the continuation of the Licence:
(i) effect and maintain adequate security measures so that no unauthorized person can access or use the Licensed Program Materials;
(ii) have effective control over Licensed Program Materials and all copies thereof;
(iii) keep a full and accurate record of the licensee’s copying and disclosure of the Licensed Program Materials and shall produce such record to the licensor whenever such a request is made.
(i) The licensee shall not modify, alter, change, adapt or translate the whole or any part of the Licensed Program Materials in any manner possible nor allow the whole or any part of the Licensed Program to be combined with or become included in any other computer programs nor decompile, disassemble or reverse engineer the same nor attempt to do any of such things, except to the extent and in the circumstances expressly required to be permitted by the licensor by law.
(ii) To the extent that the Copyright Act, 1957 (India), grants the licensee the right to decompile the Licensed Programs so as to obtain the details needed to make the Licensed Programs interoperable with other computer programs used by the licensee, the licensor hereby undertakes to provide such information readily available to the licensee. The licensor hereby reserves the right to impose reasonable conditions that may include a fee for doing so. The licensee shall first give the licensor sufficient details of the licensee’s objectives and the other software concerned. Requests for the sufficient information should be given by notice to the licensor as per the terms and conditions of this Agreement.
15. Software Maintenance
Unless the licensee enters into a software maintenance agreement with the licensor on or before the Acceptance Date the licensor shall not provide any maintenance in respect of the Licensed Program Materials. If on a subsequent date the licensee desires to receive the then current release of the Licensed Program Materials or maintenance, then the licensor may at its discretion provide the same if the licensee enters into a new licence agreement in respect of such release and also enters into the licensor’s standard software maintenance agreement then in force.
16. Operating Manuals
The licensor shall supply the licensee with 3 copies of operating manuals for the Licensed Programs containing sufficient information so that all the facilities and functions set out in the specification can be properly utilised. If the licensee needs further copies of such operating manuals then these may be obtained under licence from the licensor after paying the standard scale of charges from time to time in force.
(i) The licensor shall impart training for the staff of the licensee to use the Licensed Programs as set out in the Schedule.
(ii) Any additional training needed by the licensee shall be provided by the licensor as per the licensor’s standard scale of charges from time to time in force.
18. Licensee’s Confidential Information
The licensor shall consider as confidential all information provided by the licensee under this Agreement which is designated as confidential by the licensee or which is by its implication clearly confidential provided that this clause shall not extend to any information which was rightfully known to the licensor prior to the commencement of the negotiations leading to this Agreement or which is already in public domain or becomes so at a future date, otherwise than as a result of a breach of this clause. The licensor hereby undertakes not to divulge any confidential information to any person except to its own employees who need to know the same. The licensor shall ensure that its employees are fully aware of and comply with the provisions of this Clause. The foregoing obligations shall survive any terminations of the Licence or this Agreement.
(i) The licensee may terminate the Licence at any time by giving at least 45 day’s prior written notice to the licensor.
(ii) The licensor may terminate the Licence forthwith by issuing notice in writing to the licensee if:
(a) the licensee commits any material breach of any term of this Agreement and in the case of a breach capable of being remedied, the licensee has failed to remedy the breach and 30 days have expired after the receipt of a request in writing from the licensor to that effect;
(b) the licensee permanently discontinues the use of the Licensed Program Materials; or
(c) the licensee becoming insolvent or an official liquidator appointed of it or over any part of its undertaking or assets or shall cease to carry on business.
(iii) Except as expressly provided in sub-clause (2) or elsewhere in this Agreement the Licence may not be terminated.
(iv) Immediately upon the termination of the Licence the licensee shall return to the licensor the Licensed Program Materials and all copies of the whole or any part thereof, in the alternative upon a request being made by the licensor the licensee shall destroy the same by deleting the Licensed Programs from the media on which they are stored and certify in writing to the licensor that they have been destroyed. The licensee shall also delete the Licensed Programs from the Equipment and shall certify to the licensor that the same has been done.
(v) Any termination of the Licence or this Agreement shall have no effect on any of the accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provisions hereof which is expressly or by implication intended to come into or continue in force on or after such terminations.
The licensee shall not be entitled to assign, sub-license or otherwise transfer the Licence whether in whole or in part except that the licensee shall be entitled to assign the entire benefit of the Licence to any company which is from time to time a holding company or a subsidiary of the licensee, as defined under the relevant provisions of the Companies Act 1956 (India), subject to such company first entering into a legally binding covenant with the licensor undertaking to comply with the terms and conditions hereof and provided that at the time of such assignment such company holds the exclusive possession of the Equipment for its own use and benefit.
21. Force Majeure
Notwithstanding anything contained in this Agreement, neither party shall be responsible for any delay in performing its part hereunder in case such delay is caused by circumstances beyond its reasonable control provided the party so delaying promptly notifies the other party in writing of the reasons for the delay. Such party’s obligations shall be suspended during the term that the said circumstances continue and such party shall be given a reasonable extension of time for performance taking into account the period of delay. Except where such delay is a result of an act or omission of the other party:
(a) any costs arising from such delay shall be borne by the party incurring the same;
(b) in case such delay persists for more than 45 days, either party reserves the right to terminate this Agreement forthwith to the other in which event neither party shall be liable to the other reason of such termination except that the licensee shall pay the licensor a reasonable amount with respect to any work done before such termination and for that purpose the licensor reserves the right to deduct such sum from any amounts previously paid by the licensee under this Agreement.
(i) The licensor shall indemnify the licensee on demand, against any loss, destruction or damage to any property or injury to or death of any person caused by any negligent act or omission or willful misconduct of the licensor, its employees, agents or sub-contractors or by any defect in the design or workmanship of the Licensed Program Material.
(ii) The licensee shall indemnify the licensor on demand against, any loss destruction or damage of or damage to any property or injury to or death of any person caused by any negligent act or omission or willful misconduct of the licensee, its employees, agents or sub-contractors.
(iii) Notwithstanding anything contained in this Agreement the licensor shall not be liable to indemnify the licensee for loss or profits or contracts to other indirect or consequential loss whether arising from negligence, or breach of contract.
(iv) The licensor shall not be liable to the licensee for any damage/destruction/loss of computer programs and/or data, arising out of any failure or lapse on the part of the licensee to follow the best computing practices.
23. Entire Agreement
This Agreement along with the schedules and exhibits, if any, comprises the whole and complete agreement and it shall supersede all prior arrangements, agreements, and understandings entered between the parties relating to the subject-matter hereof. Any addition to or modification of any provision of this Agreement shall be binding only if the said addition or modification be made by a written instrument signed by a duly authorized representative of each of the parties.
All notices which are required to be given hereunder shall be in writing and shall be sent to the address of the recipient set out in this Agreement or such other address in India as the recipient may designate by notice may be delivered personally or by express courier or facsimile transmission and shall be deemed to have been served if by hand when delivered, if by express courier 48 hours after posting and if by facsimile transmission when dispatched.
In this Agreement:
(a) reference to any statue or statutory provision shall include a reference to the statue or statutory provision as from time to time amended, extended or re-enacted;
(b) words importing the singular include the plural, words importing any gender include every corporate and unincorporated; and (in each case) vice versa;
(c) any reference to a party to this Agreement includes a reference its successors in title and permitted assigns;
(d) the headings to the clauses are for ease of reference only and shall not affect the interpretation or construction of this Agreement;
(e) nothing in this Agreement shall be construed to constitute a partnership, joint-venture or agency relationship between parties.
26. Governing Law
The Agreement shall be governed by and construed in accordance with the Laws of the Republic of India.
27. Dispute Settlement
Any dispute or claim arising out of or in connection with this Agreement or the performance, breach or termination hereof, shall be finally settled by binding arbitration conducted in Kolkata (India) by a Panel consisting of Three arbitrators, wherein one arbitrator shall be appointed by the licensor, other arbitrator shall be appointed by the licensee and the third arbitrator shall be appointed jointly by the parties. The arbitration shall be governed by the provisions of the Arbitration and Conciliation Act 1996. The award of arbitration shall be binding and final.
If any provision of this Agreement is held to be invalid, illegal or unenforceable under present or future laws, such provision shall be struck from the Agreement; however such invalidity or enforceability shall not affect the remaining provisions or conditions of this Agreement. The parties shall remain legally bound by the remaining terms of this Agreement and shall strive to reform the Agreement in a manner consistent with the original intent of the parties.
In witness whereof, each of the parties has caused this Agreement to be duly executed and delivered as of the day and year first above written.
Signed for and on behalf of:
Signed for and on behalf of:
A. Details of the Equipment.
B. Details of the Licensed Programs.
C. Licence Fees.
D. Delivery Date.
(i) Total number of staff to be trained in total;
(ii) Duration of training needed;
(iii) Place of training;
(iv) Amount to be paid as T.A. / D.A.
To: Eastern Computers Limited
From: National Silk Foundation
This has reference to the agreement between our organisations dated 30th May 2004 (‘the Agreement’) pertaining to the installation and licensing of computer programs (‘the Licensed Programs’). We wish to inform the following:
1. We have today accepted the Licensed Programs.
2. We have verified the Licensed Programs and found them to be conforming to the description contained in the Agreement and that the same have been installed on the Equipment (as defined in the Agreement ) to our utmost satisfaction.
3. The Licensed Programs have successfully processed the test data referred to in clause 5 of the Agreement. We hereby attach a copy of such data and the results of such tests for your perusal.
Signed for and on behalf of:
National Silk Foundation