END USER LICENSE AGREEMENT ("EULA")
1."Software" means a TurningCloud's computer program (whether in source code, object code or any other form), and any tools, maintenance, support, installation and documentation required for its use, including all improvements, corrections, modifications, alterations, revisions, extensions, upgrades, updates, new releases, national language versions and/or enhancements to the software and/or documentation made by TurningCloud
2. "Documentation" means any user guide, manuals, technical or functional specifications and other similar materials provided to Licensee by TurningCloud on any media for use with the Software.
3. "Third Party Products" means those third party software products including but not limited to third-party proprietary database, middleware, application, server, operating system software procured through TurningCloud or any of its agent, or by a Third-Party vendor directly to Licensee. It includes but is not limited to Postgres software / programs, Java software / programs, Cloud Services, Elastic Search etc, Apache Spark and other libraries.
4. "Partner" The external agent of TurningCloud who sold the software owned and distributed by TurningCloud to the Licensee. Partners are not under employment of TurningCloud. They are independent entities who engage in selling TurningCloud's products and services. They could be referred to as distributors, resellers or partners.
5. "Use" means to directly or indirectly load, activate the processing capabilities of the Software, load, execute, access, utilize, store, employ the Software, or display information resulting from such capabilities.
6. "Proprietary Information" means: (i) with respect to TurningCloud, the Software and Documentation, any other third-party software licensed with or as part of the Software, benchmark results, manuals, program listings, data structures, flow charts, logic diagrams, functional specifications; (ii) the concepts, techniques, ideas, and know-how embodied and expressed in the Software and (iii) information reasonably identifiable as the confidential and proprietary information of TurningCloud excluding any part of the TurningCloud or Licensee Proprietary Information which: (a) 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. Grant of License: Licensee is granted a limited, non-exclusive, non-transferable license to use the Software for its internal business purposes only.
2. Limitation of Use: In addition to the other restrictions as mentioned in this Agreement, license does not permit Licensee to do any of the following:
2.1. Use the Software to train other users who are not part of the Licensees' organization (including but not limiting to its franchisee, distributors, etc.), do commercial time-sharing, provide subscription or run the business for any third party;
2.2. Sublicense or rent the Software, Documentation or Third-Party Database;
2.3. Make copies of the Software;
2.4. Auditors, Customers of Licensee may have screen access to the Software solely in conjunction with Licensee’s Use and may not Use the Software to run any of their business operations;
2.5. Use the Software for application development purposes;
2.6. Disassemble, decompile or otherwise reverse engineer the Software;
2.7. Publish any results of benchmark tests run on the Software;
2.8. Distribute, sell, transfer or assign the Software to others in any manner without the prior written consent of TurningCloud or TurningCloud may grant or withhold this consent in its sole discretion and subject to any conditions it deems appropriate;
2.9. Acquire title to the Software;
2.10. Put the Software to any other use not covered within this Agreement;
2.11. Allow any third parties to access, use or support the Software without seeking consent from TurningCloud;
2.12. Remove any copyright, trademark or other proprietary notices from the Software or its copies.
3. License Key: TurningCloud has implemented a “license key” concept for its Software being licensed through this Agreement, which allows Use of the Software only if genuine license key procured from TurningCloud is applied to the Software. It is illegal to use/ install the Software without a valid license. If the key is corrupted or becomes invalid, the Software will not operate. TurningCloud is not responsible for any damage or loss to the business or performance being affected by the loss or corruption of the license key. If a key is corrupted for the reasons not solely attributable to TurningCloud then TurningCloud may replace such corrupted key. If TurningCloud does not replace a corrupted key, TurningCloud is not liable for any damage or loss that might result due to such action. TurningCloud may also not provide further maintenance on such installation.
4. TurningCloud license key is issued only in accordance with the scope (of modules purchased and activated), number of users (number of concurrent users supported at the licensed site server) and validity (term of the license) purchased by the Licensee. Any attempt to use the Software beyond the ambit of the license issued is illegal.
5. Term licenses: TurningCloud will provide a valid license as mentioned in the Commercials only after 100% of the license cost and taxes have been paid.
Ownership of Software
TurningCloud is the sole and exclusive owner of and retains all right, title and interest in and to the Software and any derivative works thereof. No license or right is hereby granted by implication. The Software is protected by the Copyright Laws of India. The Software is only licensed under this Agreement..
TurningCloud shall, at any time, have the right to audit Licensee's use of the license granted in this Agreement upon fifteen (15) days advance written notice to Licensee of its intention to conduct such an audit at Licensee’s facilities during normal business hours. Any violation of the license grant or the terms of this Agreement identified as the result of any such audit shall entitle TurningCloud to the recovery of its auditing costs in addition to any other monetary or non-monetary legal or equitable remedy available under this Agreement or under operation of law.
TurningCloud shall charge at actuals all the cost or effort in case of any audit being conducted by any Government Department or Authority or any Regulators for the reasons attributable to the Licensee. Further, in case any investor or any third party desire to conduct Audit on TurningCloud’s software then it shall only be done on the sole discretion of TurningCloud with the following terms and conditions:
1. No commercial sensitive information (including but not limiting to any source or object code) of TurningCloud shall be subject to any audit;
2. All the cost shall be borne by the Licensee.
Term and Termination
1. Term: This Agreement and the license granted hereunder shall become effective upon execution by both parties and shall continue in effect until the earliest occurrence of any of the following (i) thirty (30) days after either Party gives a written notice to terminate this Agreement, for any reason; (ii) immediate termination notice in case Licensee breaches any provision of the Agreement including but not limited to more than thirty days delinquency in Licensee's payment of any money due hereunder, unless Licensee has cured such breach during such thirty day period; (iii) immediately if Licensee files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors; and (iv) if Licensee fails to renew the Software License on or before the due date as mentioned in Commercials mentioned in this Agreement. It is clarified that Licensee will be liable to pay all the dues till the effective date of termination for any scenario.
2. End of Term Duties:Upon any termination hereunder, Licensee shall immediately cease Use of all TurningCloud Proprietary Information including Software. Within thirty (30) days after any termination, Licensee shall deliver to TurningCloud or destroy all copies of the TurningCloud Proprietary Information in every form. Licensee agrees to certify in writing to TurningCloud that it has performed the foregoing: Licensee's rights under the Agreement immediately cease. In the event of any termination hereunder, Licensee shall not be entitled to any refund of any payments made by Licensee.
Limitation of Warranty
TurningCloud does not warrant that the Software will be error-free. Except as provided herein, the Software is furnished "as is" without warranty of any kind, including the warranties of merchantability and fitness for a particular purpose and without warranty as to the performance or results you may obtain by using the Software. Licensee will solely be responsible for determining the appropriateness of using the Software and assume all risks associated with the use of it, including but not limited to the risks of program errors, damage to or loss of data, programs or equipment, and unavailability or interruption of operations.
TurningCloud agrees to indemnify and defend Licensee from and against any and all claims, actions or proceedings, arising out of any claim that the Software infringes or violates any valid Indian patent, copyright or trade secret right of any third party; so long as Licensee provide; (i) prompt written notice to TurningCloud of such claim; (ii) cooperate with TurningCloud in the defense and/or settlement thereof, at TurningCloud expense; and, (iii) allow TurningCloud to control the defense and all related settlement negotiations. The above is TurningCloud sole obligation to Licensee and shall be Licensee sole and exclusive remedy pursuant to this Agreement for intellectual property infringement. TurningCloud shall have no indemnity obligation for claims of infringement to the extent resulting or alleged to result from (i) any combination, operation, or use of the software with any programs or equipment not supplied by TurningCloud; (ii) any modification of the Software by a party other than TurningCloud; and (iii) Licensee failure, within a reasonable time frame, to implement any replacement or modification of Software provided by TurningCloud.
Limitation of Liability
Notwithstanding anything to the contrary mentioned in this Agreement or elsewhere, in no event will TurningCloud be liable to Licensee or any third party for any special, incidental, indirect, punitive or exemplary or consequential damages, or damages for loss of business, loss of profits, business interruption, or loss of business information arising out of the use or inability to use the program or for any claim by any other party even if TurningCloud has been advised of the possibility of such damages. TurningCloud aggregate and cumulative liability with respect to its obligations and for any and all claims under this Agreement (including but not limiting to all the Parts of this Agreement) or otherwise with respect to the Software shall not exceed the payment made to TurningCloud immediately preceding twelve (12) months from the date such claim arises.
1. If assistance is needed for data export from TurningCloud software on surrender or reduction of Maintenance Service scope reduction, this will be provided at the rate determined by TurningCloud at that time based on the work involved.
2. The data export will be in a commonly used format decided by TurningCloud.
3. Except as provided under this Agreement (including but not limiting to all the Parts of this Agreement), TurningCloud disclaims all other warranties, express or implied, statutory or otherwise, as to the quality, performance, durability, including any warranty for merchantability or fitness for a particular purpose and all such warranties, conditions, undertaking and terms are hereby excluded to the fullest extent permitted by law.
Third Party Products
Whether Third Party Products are purchased from TurningCloud, TurningCloud partner or any other software vendor, Licensee / End User is solely responsible for complying with OEM licensing conditions and frees TurningCloud from any liability resulting from the use of such programs. Such Third Party Products shall only be provided on “as is” basis and will be governed by end user license agreement. The provision of the cloud services shall be governed by the specific terms and conditions prescribed by the provider of the cloud services.
1. This Agreement shall be governed by and construed in accordance with Indian law without reference to its conflicts of law principles.
2. All disputes arising out of this Agreement will be subject to the jurisdiction of Delhi courts.
1. Severability: It is the intent of the parties that in case any one or more of the provisions contained in this Agreement shall be held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein.
2. No Waiver: If either party should waive any breach of any provision of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof.
3. Export Control Notice: The Software, Documentation and Proprietary Information are being released or transferred to Licensee in India. The Software, Documentation and Proprietary Information are subject to applicable local and foreign export control laws. Licensee acknowledges its obligation to ensure that its exports of the TurningCloud Proprietary Information from India are in compliance with the Indian export control laws as well as other applicable export control laws. Licensee shall also be responsible for complying with all applicable governmental regulations of India as well as foreign countries with respect to the use of the Proprietary Information by Licensee and/or its affiliates within or outside of India. Licensee agrees that it will not submit the Software to any government agency for licensing consideration or other regulatory approval without the prior written consent of TurningCloud.
4. Confidential Terms and Conditions: Licensee shall not disclose the terms and conditions of this Agreement or the pricing contained therein to any third-party. Neither party shall use the name of the other party in publicity, advertising, or similar activity, without the prior written consent of the other, except that Licensee agrees that TurningCloud may use Licensee's name in customer listings in print/online media, reference to prospects or as part of TurningCloud's marketing efforts. Further, the Software contains Proprietary Information of TurningCloud that is protected by the laws of India and Licensee hereby agrees to take all reasonable efforts to maintain the confidentiality of the Software.
5. Notices: All notices or reports which are required or may be given pursuant to this Agreement shall be in writing and shall be deemed duly given when delivered to the respective executive offices of TurningCloud and Licensee at the addresses first set forth above.
6. Force Majeure : Any delay or non-performance of any provision of this Agreement (other than for the payment of amounts due hereunder) caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
7. Amendment to the Services or Software Terms: TurningCloud may change these terms at any time by providing thirty (30) days’ notice to Licensee. Using the Services after the changes become effective means Licensee agrees to the new terms. If Licensee does not agree to the new terms, you must stop using the Services. TurningCloud may stop providing any up-gradation or license renewal or any ancillary Services by serving 12 months’ notice in advance.
8. Transfer of License in extra-ordinary situation: The right to use of the software may be transferred to the new firm created either jointly or severally, keeping majority ownership remains same and NOC from the previous entity is being submitted. Further, there should not be any dues to be payable to the Licensor under this Agreement before such transfer. This can only be done only at the sole discretion of TurningCloud and can be transferred only once in the entire term of this Agreement.
9. Neither Party shall during term of this Agreement and twelve (12) months thereafter, directly or indirectly, employ or offer to employ any person (including but not limiting to Implementer, developer, Support, etc.).
10. Data Protection and Privacy: This provision is applicable for the entire Agreement (including but not limiting to all the Parts of this Agreement):
10.1. Each Party shall make or obtain and maintain throughout the term of this Agreement all necessary registration or filing and notification or consents which such Party is obligated to obtain and /or maintain under applicable data protection/privacy laws.
10.2. TurningCloud shall process (if at all applicable) the personal data for the sole purpose of the Services mentioned in this Agreement and not otherwise with the appropriate consent in this regard.
10.3. With respect to Parties rights and obligations under this Agreement, the Parties agree to the extent TurningCloud processes personal data on behalf of Licensee in the provision of the Services, the Licensee or any service recipient is a Data Controller and TurningCloud or the Implementer or any relevant TurningCloud’s party are the Data Processors.
10.4. TurningCloud shall be in compliance with all the applicable data protection or data privacy laws in the capacity of Data Processor.
10.5. TurningCloud shall disclose or transfer any personal data or any other data to any third party upon request from the Licensee and Licensee provided all the required consent to transfer such data in this regard.
10.6. Licensee shall be in compliance of all the data protection/privacy laws in the capacity of Data Controller.
10.7. Licensee represents and warrants that it has all the authorisation, consent and permission to share the personal data to TurningCloud for rendering Services under this Agreement and for enjoyment of the Software and any other services from time to time.
10.8. Licensee shall only share the personal data with TurningCloud only on a need to know basis and what is necessary for the provisions mentioned in this Agreement.
10.9. Licensee shall take full back-ups on a daily basis of all its data in accordance with the best industry practise.
10.10. Not with standing to the contrary mentioned in this Agreement (including but not limiting to any Part of this Agreement or elsewhere), TurningCloud in no event shall be liable for any security breaches or any other cyber issues which arises for reasons of any defects or deficiencies in any system or process, or any material, equipment or software. TurningCloud shall not be liable for any loss of data caused due to the reasons beyond its control, including without limitation, due to any third party hacking, trojan attack and other similar instances.