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SOURCE CODE LICENSING AND CONFIDENTIALITY AGREEMENT
This Source Code License and Confidentiality Agreement ("Agreement") is from 11th of July 2014 by and between ("Licensee") and Garg Technologies & Concepts Pvt. Ltd. ("GTCPL") with its principal place of business located at GL4, Plot No. 386, Sector 5, Vaishali, Ghaziabad, UP, India.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1.1. "Source Code" shall mean (i) all source code provided or made available to Licensee pursuant to this Agreement and pursuant to Licensee purchasing prior valid GTCPL license(s) and prior agreement to the GTCPL End User License Agreement ("EULA") when order is placed, and (ii) such source code's structure and organization, and (iii) all related documentation, developer's notes and database schema, if any, provided or made available to Licensee pursuant to this Agreement, and (iv) any copies (both electronic and paper) made thereof by or on behalf of Licensee.
1.2. "Compiled Application" means the executable program run from unmodified Source Code.
2. LICENSEE RIGHTS AND RESTRICTIONS.
2.1. Grant of License.
2.1.1. Subject to Licensee's strict compliance with the terms and conditions of this Agreement, GTCPL hereby grants to Licensee (i) a non-
2.1.2. Licensee understands and acknowledges that GTCPL may develop and/or market for itself the same or similar Enhancements, and may grant a third person or entity the right to develop and/or market the same or similar Enhancements, and that GTCPL has made no promises to the contrary.
2.2. Restrictions and Requirements of Use.
2.2.1. Except as expressly provided in Section 2.1, no other license or right in the Source Code is granted to Licensee under this Agreement directly or by implication or otherwise. Without limiting the generality of the foregoing and notwithstanding anything to the contrary in this Agreement, Licensee may not:
22.214.171.124. Remove any copyright notice, proprietary information notices, or other notice (collectively, "Copyright Notice") provided by GTCPL, including, without limitation, any Copyright Notice contained in the Source Code provided by GTCPL;
126.96.36.199. Assign, sublicense, lease, or in any other way transfer or disclose the Source Code to any third party, including, without limitation, (i) to any Permitted Clients, (ii) to independent contractors or developers (Third Parties), or (iii) as part of the Enhancements, unless specifically authorized in writing, by having each Third Party execute the Subcontractor agreement to effectively cover and enforce this agreement.
188.8.131.52. Utilize the Source Code in a manner to prepare, draft, or assist third parties in preparing or drafting software that is similar to the Software subject to this License that is intended for sale, license, or distribution to others (whether that distribution be for profit or free) in a manner that would compete directly or indirectly with GTCPL's products; or
184.108.40.206. Reproduce or use any part of the Source Code, Compiled Application, or use the Software except as provided in this Agreement; or
220.127.116.11. Reproduce, modify, decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-
2.2.2. The restrictions set forth in Section 2.2.1 shall apply equally to attempts to perform the restricted activities, regardless of whether or not any such attempt is successful.
2.3.1. Licensee agrees and acknowledges that the Source Code is: (i) proprietary to GTCPL; (ii) is of significant value to GTCPL; (iii) is not publicly available; (iv) contains trade secrets of GTCPL; and (v) constitutes the confidential information of GTCPL. Licensee shall comply with the following restrictions on use of the Source Code and shall maintain the Source Code in accordance with the following security procedures:
18.104.22.168. Licensee shall use commercially reasonable measures to preserve the security and confidentiality of the Source Code, including, without limitation, securing the network, server, hard drives, and other media on which the Source Code is stored or maintained.
22.214.171.124. Licensee shall limit access to the Source Code to its employees who have a need to access the Source Code for the purposes of exercising Licensee's rights under this Agreement (each, an "Authorized Person") and to its independent contractors (and developers (Third Parties), if any, who are approved by GTCPL pursuant to Section 126.96.36.199 (each, an "Authorized Independent Contractor"). Without limiting the foregoing, no Authorized Person or Authorized Independent Contractor may have access to the Source Code unless and until: (i) he or she has been apprised of and acknowledges the confidential and proprietary nature of the Source Code; (ii) has been trained with respect to the procedures designed to preserve its confidentiality; (iii) and is subject to a binding and enforceable obligation neither to use the Source Code (other than for purposes expressly permitted by this Agreement) nor to disclose such Source Code to any person or entity other than a person similarly authorized to access the Source Code.
188.8.131.52. Licensee shall conduct periodic reviews to ensure compliance with the foregoing security requirements. GTCPL shall have the right to conduct a review of Licensee on Licensee's premises to ensure compliance with the foregoing security restrictions, including an inspection the records and agreement maintained by Licensee pursuant to subsection 184.108.40.206 above, provided that GTCPL provides at least three (3) business days prior written notice.
2.3.2. Licensee shall be jointly and severally responsible for any violation of any of the confidentiality obligations set forth in this Agreement by any of its employees, contractors and third parties acting on its behalf.
2.4. Injunctive Relief. Licensee acknowledges and agrees that GTCPL will suffer irreparable damage in the event of a breach by Licensee of the terms of Sections 2.3 or 2.4 of this Agreement and that GTCPL will be entitled to injunctive relief (without the necessity of posting a bond or proving actual damages) in the event of any such breach.
2.5. Indemnification. Licensee hereby agrees to indemnify, defend and hold harmless GTCPL and its directors, officers, shareholders, partners, affiliates, employees, representatives and agents from and against any loss, fines, fees, settlements, judgments, costs, expenses (including, without limitation, reasonable attorneys' fees, court costs, and administrative fees), and any other liability arising out of or related to any claim, demand, or cause of action asserted by any third party arising out of or related to Licensee's use of the Enhancements.
3. LICENSE FEES
3.1. License Fees. Licensee will pay to GTCPL the license fee(s) for source as follows [per]: (a) The amount paid when Licensee placed their "with source" or "add source" order on the GTCPL website, or (b) in the times and amounts set forth in Exhibit A ("License Fees") by prior special agreement with GTCPL.
3.2. Payment Procedures. Any payments due hereunder shall be made in U.S. currency or Indian Rupees. Licensee shall pay the amount invoiced by GTCPL within thirty (30) days of the invoice date without deduction or offset of any kind. All payments by Licensee to GTCPL pursuant to this Agreement shall be made by wire transfer to the bank and account number or to such other place or in such other manner as GTCPL may from time to time specify by written notice to Licensee.
3.3. Late Fees. Licensee will be responsible for a late fee of 1.5 % per month (or the maximum rate allowed by applicable law if it is less) on any amount not paid when due, unless and to the extent such amount is disputed in good faith and the parties are actively seeking a resolution to such dispute.
3.4. Taxes. The charges required to be paid hereunder do not include any amount for taxes, duties or import/export fees. Licensee shall be solely responsible for, and shall pay or reimburse GTCPL for the payment of, all sales, use, value added, excise, property, or other taxes or levies, duties or import/export fees, if any, that GTCPL is required to collect or remit to applicable tax authorities (including any interest or penalties thereon). This provision does not apply to GTCPL income from Indian Licensee. The parties shall reasonably cooperate to obtain any applicable exemption certificates that exempt Licensee or the transaction hereunder from the taxes referred to in this section. Licensee shall defend, indemnify, and hold GTCPL harmless from any claims, penalties, fees, and other liability resulting from Licensee's breach of its obligations set forth in this section.
4. INTELLECTUAL PROPERTY.
4.1. Existing Intellectual Property. As between the parties, GTCPL is and shall be the exclusive owner of all right, title and interest in and to (i) the Software and the Source Code, and (ii) all patent, copyright, trademark, trade secret, and any and all other protectable intellectual property and proprietary rights both now and in the future, whether or not registered or perfected (but to the extent existing, all registrations, applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force), and whether arising by operation of law, contract, or otherwise (collectively, "Intellectual Property Rights") in and to the foregoing (the "Existing Intellectual Property"). The Software and Source Code are protected by copyright and other applicable laws, including without limitation by Indian Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. Licensee may not copy or use the Software or Source Code except as permitted herein. Licensee agrees not to modify, adapt or translate the Software or Source Code except as permitted herein. Any information or documentation supplied by GTCPL or otherwise obtained by Licensee in connection with or as a result of this Agreement may only be used by Licensee for the purpose described herein and may not be disclosed to any third party (except as permitted herein) or used to create any software which is substantially similar to the Software.
4.2. New Intellectual Property. As between the Parties, any right, title and interest to any Enhancements, updates, and modifications shall be owned by the Party who created them; with respect to Enhancements, updates, and modifications, that are jointly created, they shall be owned by GTCPL and Licensee shall be granted a license to use those jointly created Enhancements, updates, and modifications in accordance with this Agreement and the prior agreed EULA. In no event shall any rights in the GTCPL Source Code vest or otherwise transfer to Licensee and Licensee acknowledges that any ownership of Enhancements, updates, and modifications shall be limited to the Enhancements, updates, and modifications and not the underlying GTCPL Source Code.
4.3. Cooperation. The Parties agree to mutually cooperate with one another in attempts to obtain, perfect, or register any New Intellectual Property owned by one another as outlined in Section 4.2. In connection with the foregoing, the Parties agree to execute any documents of assignment, registration, and recordation as may be necessary to perfect, or protect, the rights assigned to each Party hereunder in each country in which the assignee Party desires, and ensure that the Parties respective employees and permitted contractors, are bound by and abide by the terms and conditions of this provision and have executed all agreements necessary to obtain, perfect, or register the New Intellectual Property.
5. WARRANTY, WARRANTY DISCLAIMER, AND LIMITATION OF LIABILITY.
5.1. Mutual Representations. Each party represents and warrants (i) that such party is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) that such party has the legal right and authority to enter into and perform its obligations under this Agreement; (iii) that, to the best of its knowledge, the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such party; and (iv) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.
5.2. Warranty Disclaimer. Except as specifically set forth in Section 5.1 above, no further warranty of any kind is being provided by GTCPL, including, without limitation, any warranty that the Software and Source Code shall be free from defects in design, material or workmanship. LICENSEE ASSUMES TOTAL RESPONSIBILITY FOR THE USE OF THE SOFTWARE AND SOURCE CODE, AND THE SOFTWARE AND SOURCE CODE ARE PROVIDED ON AN "AS-
5.3. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, GTCPL SHALL NOT BE LIABLE TO LICENSEE, AND LICENSEE COVENANTS THAT IT WILL NOT ASSERT A CLAIM AGAINST GTCPL, UNDER ANY LEGAL THEORY, WHETHER IN AN ACTION BASED ON A CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE PROVIDED BY STATUTE OR LAW, (i) FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR STATUTORY DAMAGES, OR ANY DAMAGES RESULTING FROM LOST PROFITS, INTERRUPTION OF BUSINESS, OR LOSS OF GOODWILL, EVEN IF GTCPL HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (ii) FOR DAMAGES RELATED TO OR ARISING OUT OF THIS AGREEMENT IN AN AMOUNT THAT EXCEEDS THE LICENSE FEES ACTUALLY PAID BY LICENSEE UNDER THIS AGREEMENT. LICENSEE HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE.
5.4. Basis of Bargain. The parties hereby acknowledge and agree that the warranty disclaimers and limitation of liability provisions set forth above have been negotiated and are fundamental elements of the basis of this Agreement, and GTCPL would not be able to provide the licenses granted herein at the price and on the other terms and conditions currently offered without such limitations. The parties further agree that such provisions will inure to the benefit of the other party's successors and permitted assigns.
6.1. Term. The term of this Agreement and the licenses granted herein shall begin on the effective date of this Agreement and shall continue as long as Licensee is using GTCPL software or until the earlier termination of this Agreement pursuant to the provisions set forth herein.
6.2. Event of Default. Each of the following shall constitute an event of default ("Event of Default") under this Agreement: (a) Licensee fails to pay any amount due under this Agreement within thirty (30) days of the date such amount is due; (b) an uncured material breach by either party of this Agreement, provided that the non-
6.3. Termination upon Event of Default. If an Event of Default occurs, the non-
6.4. Effect of Termination. Upon termination or expiration of this Agreement for any reason whatsoever, Licensee shall immediately: (i) cease all use of the Source Code; and (ii) within ten (10) days, return or destroy (and have an authorized officer certify such destruction) the Source Code, including without limitation, removing all copies of Source Code from Licensee computers and storage media. In addition to the foregoing, Licensee agrees that it shall not, following termination or expiration of this Agreement, act in any way to damage the reputation or goodwill of GTCPL, the Software, any Enhancement, or any other product or software offered by GTCPL.
7.1. Assignment. Licensee may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of GTCPL, such consent to be given at its sole discretion. Any attempted assignment without such prior written consent shall be void. GTCPL may assign all or part of this Agreement immediately, without the prior written consent of Licensee (i) to any successor in interest to GTCPL who assumes responsibility for GTCPL' obligations hereunder; or (ii) if necessary to satisfy the rules, regulations and/or orders of any federal, state or local governmental agency or body.
7.2. Dispute Resolution. Any dispute relating to this Agreement shall be submitted for binding arbitration under ‘The Arbitration and Conciliation Act, 1996’ and its amendments till date.. The arbitration shall be heard and determined by a panel of three (3) arbitrators selected by the the process specified in ‘The Arbitration and Conciliation Act, 1996’, and each such arbitrator shall be an attorney having experience and familiarity with information technology disputes. Judgment on any award entered therein may be entered in any court of competent jurisdiction. The venue for any such arbitration shall be in New Delhi, India.. In all cases, each party shall bear its own costs relating to such arbitration, and the parties shall equally share the arbitrators' fees unless provided otherwise in this Agreement or otherwise determined by the arbitrator, and the arbitration and all related proceedings and discovery shall take place pursuant to a protective order entered by the arbitrators that adequately protects the confidential nature of the parties' proprietary and confidential information. In no event shall any arbitration award provide a remedy beyond those permitted under this Agreement, and any award providing a remedy beyond those permitted under this Agreement shall not be confirmed, no presumption of validity shall attach, and such award shall be vacated. This agreement shall be governed by and construed in accordance with the laws of New Delhi, India, excluding its conflicts of laws provisions.
7.3. Severability. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be amended to reflect, to the greatest extent permitted under applicable law, the original intent of the parties, and the remainder of the provisions shall remain in full force and effect.
7.4. Waiver. Either party's failure to insist upon strict performance of any provision of this Agreement shall not be construed as a waiver of that or any other of its rights hereunder at any later date or time.
7.5. Force Majeure. With the exception of any payment obligations, neither party shall be liable for failing to perform its obligations hereunder (other than payment obligations) where delayed or hindered by war, riots, embargoes, strikes or acts of its vendors or suppliers, accidents, acts of God, or any other event beyond its reasonable control.
7.6. Notices. All notices including notices of address changes contemplated hereunder shall be deemed received on the third day after mailing if sent by mail, or immediately if sent by facsimile or e-
7.7. Survival. All terms and provisions of this Agreement that should by their nature survive the termination shall so survive.
7.8. Counterparts. This Agreement may be executed in separate counterparts including facsimile copies, each of which shall be deemed an original, and all of which shall be deemed one and the same instrument and legally binding upon the parties.
7.9. Entire Agreement. Each Exhibit is hereby incorporated by reference into this Agreement as if fully rewritten herein. This Agreement, including any Exhibits attached hereto and made part hereof, constitutes the entire agreement between Licensee and GTCPL with respect to the subject matter hereof. This Agreement supersedes any prior agreements, representations, or dealings between the parties.
7.10. Amendment. GTCPL reserves the right at any time to modify this Agreement without notice and to impose new or additional terms or conditions on your use of your use of the Software. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Your continued use of the Software will be deemed acceptance thereof.
7.11. Construction. The provisions of this Agreement are the product of discussion and negotiation by the parties, and no provision may be construed against either party by reason of its drafting of such provision.
7.12. Headings. The section headings herein are for convenience and reference purposes only and shall not serve as a basis for construction or interpretation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by a duly authorized representative effective as of the date set forth at the top of this Agreement.
Release of Source Code may require Prior Fully Paid Valid GTCPL "With Source" License
Release of Source Code Requires Adherence to GTCPL software End User License Agreement (EULA)
Release of source code does NOT allow Licensee to use source code except in conjunction with those GTCPL licenses. Release of source code does NOT release Licensee from our requirement of having a valid, paid in full, license for each GTCPL installed, or used, by Licensee per the GTCPL EULA. The terms of this Agreement augment those terms and conditions set forth in the EULA. The EULA was accepted by Licensee when purchasing the GTCPL licenses.
Release of Source Code Does Not Entitle Licensee to Updates Beyond GTCPL License Terms
Licensee is entitled to source code for only those versions of GTCPL software to which they would normally be entitled based upon their initial purchase and any additional support or upgrade GTCPL software license purchases made by Licensee.
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