This SOFTWARE LICENSE AGREEMENT ("Agreement") is entered into by and between Nettsetgo Software Pvt. Ltd. ("Licensor"), 86A, Topsia Road, Haute Street, Kolkata – 700 046 and you as a "Licensee/Customer" and describes the terms and conditions pursuant to which Licensor shall license to customer and support a software product called as Boost.
WHEREAS the Customer has signed up with the Company for use of the software and agreed to pay as per one of the schemes offered by the Company for use of the software and obtaining a license to the software application mentioned therein and developed by the Company. The use of the said software application by the customer shall be governed by this agreement. It is presumed by the Licensor that the Customer is capable and authorised in law to enter into a legally binding agreement.
AND WHEREAS in consideration of the mutual promises and upon the terms and conditions set forth below, the parties agree as follows:
1.1"Application or Software Application" means the application through services shall be provided by the Licensor and excludes Third Party Software.
1.2"Commission on sale" means the fee payable for every sale done by the Licensee using the Services provided by the software application of the Licensor.
1.3"Confidential Information" means this Agreement and all its Schedules, any addenda hereto signed by both parties, all software listings, documentation, information, data drawings, benchmark tests, specifications, trade secrets, object code and machine-readable copies of the Software, source code relating to the software, and any other proprietary information supplied to Licensee by Licensor, or by Licensee to Licensor and clearly marked as "confidential information" including all items defined as "confidential information" in any other agreement between Licensee and Licensor whether executed prior to or after the date of this Agreement.
1.4"Customer Data" means all data processed by Software application of the Licensor or provided to the software application for processing or otherwise processed as part of the Services including but not limited to the data generated by the software application from the Licensee’s input.
1.5"Customer Equipment" means the hardware and software which the customer is required to have in use in order to use and enable the Services to be provided in accordance with this Agreement.
1.6"Documentation" means all on-line help files or any written instruction manuals regarding the Use of the Software.
1.7"Downtime" means and refers to a period during Service hours during which there is partial or total loss of services.
1.8"Effective Date" means the date on which the Licensee/Customer signs up for the product and accepts these terms and conditions.
1.9"Intellectual Property Rights" means all copyrights, patents, database rights, registered and unregistered design rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, and other intellectual and industrial property rights in all parts of the world in respect of the software application offered herein.
1.10"Services" means the set-up, hosting, reporting and ongoing management of the Software application which is a collection of tools and resources to manage an online store and is designed to optimize stock while pushing sales. In addition to the same, services may include professional consulting services for better use of the systems and the application.
1.11"Subscription fee" means and refers to the amount paid each month by the Licensee to the Licensor for availing the application services mentioned in this Agreement in terms of the applicable scheme offered by the Licensor.
1.12"System Management Regulation" means regulations introduced by Licensor from time to time for better management of the Services, which may include but is not limited to:
A) Defining minimum specifications for equipment used by the Licensee to interface with the Services, including but not limited to, routers, firewalls and PC's
B) Regulations to ensure that the network through which the Services are provided are not overloaded and that the security and integrity of the network is maintained, including regulations from any data centre facility engaged by the Licensor in connection with the Services. These may include restrictions on usage limit either in terms of size or bandwidth.
1.13"Technical Support" means help and remote assistance provided to the Licensee by trained personnel of the Licensor. It shall be limited to provide assistance in cases of errors, malfunctioning or accessing functions of the application. Such technical support shall be provided from 10 a.m. to 5 p.m. (IST) from Monday to Friday only excluding National Holidays of India.
2. Grant of License
2.1The Licensor hereby agrees to provide as per the specified period as per the prevailing scheme opted for by the Licensee and in consideration of the Subscription fee paid and the Commission fee on sale in terms of clause 4, to supply the Services on a non-exclusive basis upon the terms and conditions of this Agreement. However, the licensor reserves the right to refuse registration of, or cancel, accounts it deems inappropriate irrespective of whether it violates any of the terms of this agreement.
2.2The Licensee agrees that the Licensor may at any time, without notice, incorporate license management software into the Software Application for the purpose of ensuring that License Rights are not exceeded.
2.3This software application may be made available across different platforms or technology and the licensee may want to switch to another platform or technology of using this application. The same will be made available to the existing licensee provided the licensee has used the software for atleast 2 years in the same form in which it was purchased.
3. Subscription Fee
3.1The Licensee hereby agrees to pay an amount of Currency in INR, if the Licensee is Indian and uses the services in India/USD for all other licensee per month in advance and as per the scheme selected by them. The schemes are offered at the sole discretion of the Licensor and they may change at any time without notice. However, if a licensee has signed up for a scheme, then the same shall be valid till such time the same has been contracted for or for a period of one month whichever is earlier.
3.2The amount is paid as fixed subscription fee in order to avail the Services provided by the Licensor and is payable at all times irrespective of whether or not the licensee uses or sells products through this service.
3.3The licensor reserves with itself the right to modify its pricing policy, schemes and offers at any time but after giving the licensee due advance notice thereof.
3.4If the licensee wants to change the scheme so selected by them then they have to provide an advance notice of at least 60 days to the licensor.
4. Commission Fee
It is agreed by and between the parties that the Licensee shall be liable to, make payment to the Licensor an amount for every sale made by the Licensee. The amount shall be in accordance with the scheme chosen by the licensee and shall be calculated on the last day of the month and be payable to the Licensor on or before the 7th day of the succeeding month. In case of delay in payment by the Licensee for two consecutive months the Licensee shall be liable to pay the said amount along with interest payable @ 2% per month calculated on a daily basis and the Licensor shall have the right to discontinue the services of the licensee on account of such breach by the licensee. The licensor reserves with itself the right to modify its commission fee, offers at any time but after giving the licensee due advance notice thereof.
5. License Use & Restrictions
5.1In order to be able to avail the Services provided by the Licensor, the Licensee shall be assigned a Username and Password from the Licensor. For the purpose of security, the Licensee is advised to change the password. It is the responsibility of the licensee/customer to maintain the security of the customer's and his account, password and files, and for all uses of the customer’s and his account and of the services in the customer’s and his username. The said username shall be valid for a period of one year from the effective date of this Agreement. The Licensee should be careful with respect to the input data on the software as the output and reports generated will be based on the same.
5.2To properly and effectively avail the benefits of e-commerce, the licensee will need to subscribe to any compatible third party payment gateway. The licensor will assist and facilitate the licensee’s subscription to the same and help in documentation without any additional fee. However, the licensee shall have to accept the terms and conditions of the payment gateway and bear charges, if any for continuous and uninterrupted usage of the same.
5.3The Licensee hereby agrees and covenants with the Licensor that the Licensee by itself or through any parent, subsidiary, affiliate, agent or third party, shall not share, sell, lease, sub-license or otherwise deal with the Username and Password assigned by the Licensor. . The Licensee is prohibited from using the application on a timesharing basis or service bureau purposes or otherwise for the benefit of a third party.
5.4 The licensee is prohibited from using the services for selling or offering for sale any article, object or goods which are deemed to be illegal in any country where either the same are offered or the same are purchased. Furthermore, the licensee is not permitted to sell or offer for sale any contraband substances, drugs or any other similar substances which are prohibited by any law.
5.5It shall be presumed that every email message sent in connection with the Services, Licensor acknowledges and agrees that the recipient has agreed to receive such communication and that the Licensor will not indulge in bulk or unsolicited email services. Furthermore the licensee shall not use the services to send Internet viruses, worms, Trojans or any other similar objects that may result in disruption or denial of service, or cause damage to data and content of any other individual.
5.6 The licensee shall not include content that may be profane, blasphemous, defamatory or derogatory of any individual, community, religious or political organization.
5.7The licensee is prohibited from posting any unauthorized images or disclose any private or personal information without express consent of the concerned party and dispute or liability arising there from shall be that of the licensee.
5.8The licensee is prohibited from engaging itself in any activity which in the opinion of the licensor (which shall be subject to the licensor’s sole discretion) interferes or is harmful to the services, business, operation, reputation, goodwill. Also if the licensee fails or neglects to co-operate with the licensor in correcting or preventing any person from violating the terms of this license, then the same would constitute violation of the terms governing this license.
6. Hosting & Maintenance
6.1The Software Application shall be hosted on a secure server of the Licensor. The service shall be available to the Licensee through the website www.boostmysale.com
6.2The Licensor shall undertake maintenance and upgradation of the application from time to time and shall be responsible to ensure that the services are available to the licensee at all times, subject to however, force majeure.
6.3The Licensor does not take any responsibility or liability of data backup, system crashes and server outage or any other technical error.
6.4In order to continue using the Services in its best setup environment, the machines of the Licensee should at all times meet the minimum system requirements as specified. The Licensee should at all material times observe the regulations issued by the Licensor in order to avail the services to its maximum advantage.
7A Technical Support
The Licensor shall provide online technical support on ticket basis and through online chat (10 a.m. to 5 p.m. (IST) from Monday to Friday only excluding National Holidays of India) to the licensee.
7B. Downtime and Service Suspensions
The access or use of any of the services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the services for any reason, including as a result of power outages, system failures or other interruptions;
The licensor shall be entitled to suspend access to any portion or all of the services at any time (a) for a scheduled downtime to permit conduct of maintenance or make modifications to any service; (b) in the event of denial or service attack or any attack on the service which may pose as a risk to any user of the services as may be reasonably apprehended by the licensor and (c) in the event any of services provided is prohibited by law or is in violation of the regulations.
It is made clear that for suspension of service or system downtime the licensor shall not be held liable either directly or indirectly. For any scheduled suspension of service a notice may be sent through e-mail so that the licensee is adequately cautioned. But any failure to provide such notice shall not make the licensor liable to the licensee.
8. Warranty and Limitation of Liability
8.1The Licensor warrants to the Licensee that the Service shall be available for use as agreed upon for a period of one month from the date of this Agreement. If the Service cannot be availed as warranted, the Licensor undertakes to correct the same to ensure its usability. If the problem still persists, the Licensee can at his option terminate the Agreement forthwith, subject to payment of outstanding commission fees. However, no refunds shall be made by the Licensor.
8.2Except as set forth specifically in this agreement, the Licensor makes no warranties, whether express, implied, or statutory regarding or relating to the Service provided to Licensee under this Agreement, including support. Specifically, Licensor does not warrant that the Service provided will be error free or will always perform in an uninterrupted manner. The licensor does not warranty as to the results that may be obtained by the use of all services provided by the licensor and specifically states that the services are provided on “as is” basis. To the greatest extent permitted by law, Licensor specifically disclaims all implied warranties of uptime or downtime.
8.3The Licensor further does not warrant that the website or the server will be fully secure from attacks by hackers and advises the licensee to take sufficient care of the same.
8.4In no event will Licensor be liable for any loss of profits, loss of use, business interruption, loss of data, cost of cover or indirect, special, incidental or consequential damages of any kind in connection with or arising out of the performance or use of the Services rendered hereunder. Licensor’s maximum aggregate liability (whether in contract or in tort or under any other form of liability) for damages or loss, howsoever arising or caused, whether or not arising from Licensor’s negligence, related to the Service, shall in no event be greater than the monthly subscription fee in terms of the scheme selected by the licensee.
8.5This software application is developed and based on the current set-up of third party API (Application Program Interface) which are generic in nature and not likely to change substantially. However, in case these change due to change in technology or policies of the third party or any other reason whatsoever, then this software application may not necessarily run or function as specified. Such an event would be construed as force majeure.
8.6The product is a platform which has integrated itself with various third party payment gateways to facilitate payments, payment statements and assimilation of other financial information for the benefit of the customer. The Licensor cannot and shall not be liable for any error, mistake, fraud or delay in making or receiving payments as the same is controlled by the respective payment gateway entity and not the licensor. Therefore, the licensor shall be absolved from any liability all such claims.
9. Mutual Indemnification
9.1. Indemnification by the Licensor:
a) The Licensor hereby covenants with the Licensee that in case any claim, demand, suit or proceeding is made or brought against the Licensee, by any third party, alleging infringement or misappropriation of any patent, copyright and/or trademark rights, by use of "boostmysale.com" the LICENSOR shall indemnify and keep the LICENSEE indemnified against the same.
b) The LICENSOR shall indemnify and keep the LICENSEE indemnified as mentioned above, provided that the Licensee;
(i)Promptly notifies the LICENSOR of the claim as against the Licensee;
(ii)Provides the Licensor with the sole right to defend and settle the claim as against the Licensee. However, the Licensor shall not defend and/or settle any claim brought against the Licensee unless, the Licensor unconditionally releases and/or discharges the Licensee of his liability;
(iii)Provides the Licensor with all reasonable assistance, at the expense of the Licensor.
c) In the event of a claim against the Licensee, or if the Licensor reasonably believes the "boostmysales.com" infringes or misappropriates, or may infringe or misappropriate, the patent, copyright and/or trademark rights of any third party, the Licensor shall have the right to;
(i)Modify the said logo in order to prevent infringement or misappropriation;
(ii)Obtain a license to enable Licensee’s continued use of the services in accordance with this Agreement; or
(iii)Terminate the Licensee's right to use these services by providing a 30 day written notice and shall refund any amount (s) received from the Licensee for the remaining term under this Agreement, from the date of termination.
d) In case any action as described under clause (c) hereinabove is taken by the Licensor, the same shall be at no cost to the Licensee and shall not constitute breach of the Licensor’s warranties as mentioned above.
e) In the event a court order restricting the Licensee's use of the Services is passed, the Licensor shall take actions under sub-clause (i) or (ii) of clause '(c)' mentioned above. In case, the Licensor is unable to accomplish the said actions in a commercially reasonable manner, the Licensor shall take action as described under sub-clause (iii) of the said clause '(c)'.
9.2 Indemnification by the Licensee:
The Licensee hereby covenants with the Licensor to indemnify and keep the Licensor indemnified at all times, in case any claim, demand, suit or proceeding is brought against the Licensor by any third party, for reasons of the Licensee's breach of his responsibilities, in terms of this Agreement or that the Licensee's conduct.
10. Intellectual Property Rights:
10.1Availing the Services of the Licensor does not vest upon the Licensee ownership of any intellectual property rights in the Services or the content accessed by the Licensee.
10.2The Licensee shall not have the right to use any branding or logos used in the Services by the Licensor.
10.3The Licensee may be required to submit content while availing the Services of the Licensor. The Licensee shall retain the ownership of the intellectual property rights that the Licensee holds in that content.
10.4The Licensee provides a worldwide license to the Licensor to use, host, store, reproduce, modify, communicate, publish, publicly perform, publicly display and distribute the content submitted by the Licensee. The rights granted in this license are for the limited purpose of operating, promoting, and improving the Services of the Licensor, and to develop new ones. This license continues even if the Licensee stops using the Services of the Licensor.
11. Force majeure
11.1The Licensor shall not be liable to the licensee on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquakes, fire and explosions, but the inability to meet financial obligations is expressly excluded. Furthermore, if the APIs of third party applications change substantially or do not permit the running of these programs then the occurrence of such an event would be construed as force majeure.
11.2It shall be the endeavour of the Licensor in good faith to address the issue and mitigate the same so that the services are resumed at the earliest possible time. However, technology downtime being unpredictable and identification or rectification of the problem may involve use of third party services and hence no guarantee or warranty of the time required to resume the services can be assured by the Licensor.
11.3In case of the gravity of the problem and its likelihood of continuation for more than reasonable time, the Licensor shall inform the licensee of the possible reasons for the occurrence of the act of force majeure.
12. Confidential Information
Each party acknowledges that the Confidential Information constitutes valuable trade secrets and each party agrees that it shall use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and will not disclose, or permit to be disclosed, the same, directly or indirectly, to any third party without the other party's prior written consent. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. However, neither party bears any responsibility for safeguarding information that (i) is publicly available; (ii) obtained by the other party from third parties without restrictions on disclosure, (iii) independently developed by the other party without reference to Confidential Information, or (iv) required to be disclosed by order of a court or other governmental entity. Nothing herein will prevent routine discussions by the Licensee that normally take place in a "user group" context.
13.1Unless otherwise notified, the Licensor shall automatically renew the licensee’s account for a further period similar to the one subscribed for by charging fees at the then prevailing rates for renewal.
13.2If the licensee chooses not to renew the subscription then he has to exercise the option 30 days prior to its expiry. However, if the licensee chooses to cancel the automatic renewal made by the licensor, then he is liable to pay for the services till such date that he issues a cancellation notice.
14.1 This Agreement commences on the date of execution of this Agreement and will remain in force for such period as long as the licensee subscribes to the same. Termination of this Agreement shall occur if any of the following events (“Termination Events”) occur, provided that no such termination will entitle Licensee to a refund of any portion of any monies which have been paid to Licensor:
a)Licensee is in breach of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after Licensor gives Licensee written notice of such breach;
b)Licensee is regularly and deliberately not complying with regulations/directions issued by the licensor on use of the services and exhausts the resources of the licensor;
c)Licensee seeks to hack or break any security mechanism on the services or the licensor determines that the use of the services by the licensee poses a service or security risk to licensor, any other user of the services or to third party sellers and that may subject the licensor to liability, damages or danger;
d)Licensor reasonably determines that there is evidence of fraud with respect to the licensee’s account;
e)Licensor receives notice or otherwise determines, in their sole discretion, that the licensee is using the services for an illegal purpose or in a way that violates any law or violates, infringes, or misappropriates the rights of any third party;
f)Licensor reasonably apprehends that the licensee is misusing the license provided for reverse engineering or doing any activities detrimental to the business of the licensor; the licensor will return any payments received from such licensee.
g)Licensee terminates its business activities or becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority.
h) If the licensee does not log into its account for a continuous period of 90 days, the account may deemed as being inactive. The account shall be classified as inactive by the Licensor if there is no adequate response within one week to a final warning mail by the licensor informing the licensee that the account has remained inactive due to non-use for a period of 90 days. Thereafter, the licensor shall not be responsible for any claims by the licensee in respect of its data. All outstandings must be credited to the licensor.
14.2 Termination will become effective immediately or on the date set forth in the written notice of termination. Termination of this Agreement will not affect the provisions regarding Licensee’s or Licensor’s treatment of Confidential Information, provisions relating to the payment of amounts due, provisions limiting or disclaiming Licensor’s liability, provisions regarding non-solicitation and/or applicable law, which provisions will survive termination of this Agreement.
14.3 Post termination assistance such as retrieval of data, may be provided by the licensor at their sole discretion and at a fee.
15. Non-Assignment/Binding Agreement
Neither this software application nor any rights under this Agreement may be assigned or otherwise transferred by Licensee, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidate, without the prior written consent of Licensor, which consent will not be unreasonably withheld.
Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by registered mail return receipt requested, (c) sent by overnight air courier, or (d) by facsimile, in each case forwarded to the appropriate address set forth herein. Either party may change its address for notice by written notice to the other party. Notices will be considered to have been given at the time of actual delivery in person or in other cases when it is actually delivered including the moment of receipt by facsimile.
17.1Waiver- Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed or be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to make subsequent action.
17.2Taxes & Charges - All payments are to be made by credit card / wire transfer and the charges of which are to be borne by the licensee. Payment of all applicable taxes shall be in addition to the above mentioned charges, fees and has to be paid by the licensee.
17.3Severability- If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
17.4Entire Agreement -This Agreement (including the Schedules and any addenda hereto signed by both parties) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter, except as provided in Section 1.1 with respect to the definition of "Confidential Information."
17.5Counterparts- This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.
17.6Applicable Law- This Agreement will be interpreted and construed in accordance with the laws of the West Bengal, India, without regard to conflict of law principles.The licensee waives its right to file litigation in any other jurisdiction apart from the courts at Calcutta, West Bengal, India.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date this has been accepted by the licensee; i.e.the effective date.