Version No. of the License terms and conditions: V 1.0
Effective date of this version of the License terms and conditions: 05.04.2011
Issue date of this version of the License terms and conditions: 05.04.2011
The License terms and conditions specified hereunder are binding upon all users of all Software developed, or in any other manner delivered, by the company BELLO VISTA TECHNOLOGIES PVT LTD, Webel HRDC, Room- 7,1st floor, Taratala, Brace Bridge, Kolkata, (hereinafter referred to as the ”Company“), irrespective of the method of delivery of the Software.
1.1 Licensee
Person who, on the basis of ordering a specific License to defined modules or programs of the Company's Software, being granted a License Certificate, and paying a License fee, is afforded the right to use the Company’s Software to the extent and for the time specified in the License Certificate issued by the Company or generated by its License activation system.
1.2 Company's Software
All Software that is developed and provided by the Company or, as the case may be, all Software to which the Company may, on the basis of any other right, provide Licenses to potential Licensees.
1.3 Provided Software
Software whose use was requested by the Licensee, and whose use by the Licensee has subsequently been permitted by the Company to an extent compliant with the License Certificate.
1.4 License Certificate
A certificate is issued by the Company (in hardcopy or electronic form) to a specific Licensee and with respect to particular Provided Software, on the basis of which the Licensee has the right to use the Provided Software to an extent corresponding with the Company's valid License Terms and Conditions that are valid at the time of the issue of the License Certificate. The License Certificate, in particular, contains the date of the granting of the License, the period of time for which the License is granted, the individual modules and programs for which the usage right is granted to the Licensee, as well as reference to the current version of License Terms and Conditions stating the extent of the License granted to the Licensee, and, if applicable, details of persons on whose behalf services may be established by the Licensee through the use of the Provided Software. The Company reserves the right to stipulate and/or update from time to time the manner of issuance and/or distribution of the License Certificates namely considering available distribution channels, License activation and Licensee authentication methods as available from time to time. In particular the License Certificates may be issued (depending on agreement between Licensee/Partner and the Company) as a hardcopy document or generated by Company’s License authentication system based on activation of a License through electronic means.
1.5 Authorised Partner of the Company
A company that has concluded a framework agreement with the Company under which the training of the technical staff of such Authorised Partner of the Company shall be provided for the purpose of implementing and maintaining the Company's Software.
1.5 Authorised Partner of the Company
A company that has concluded a framework agreement with the Company under which the training of the technical staff of such Authorised Partner of the Company shall be provided for the purpose of implementing and maintaining the Company's Software.
1.6 License Fees
Fees that the Licensee shall be obliged to pay to the Company directly or indirectly (through the Authorised Partner) for the use of the Provided Software. License fees shall be paid in an amount based on the customer price list that is valid on the date of issue of the License Certificate (respectively date of its ordering in case of certificates generated based on License activation procedure) for the Provided Software, unless another amount for the License fee is otherwise agreed upon with the specific Licensee and confirmed in writing in the License Certificat.
2.1 Subject of the License
Based on the issue of the License Certificate, the Licensee is granted a non-exclusive right to use the Provided Software in the limited scope of its own business activities (a) to the extent stated in the License Certificate, (b) for the period stated in the License Certificate, and (c) under the terms and conditions stated in the currently valid License Terms and Conditions of BELLO VISTA TECHNOLOGIES PVT LTD . If the License is granted for the purpose of providing services to the third persons through the use of the Provided Software (outsourcing), the Provided Software may only be used for provision of services to the person listed in the License Certificate.
2.2 Right to Use the Provided Software
The Company represents that it is exclusively authorised to grant a License to the Provided Software. Both contracting parties acknowledge that the Licensee does not, and shall not, obtain the BELLO VISTA TECHNOLOGIES PVT ownership right hereunder to the Provided Software and that the Licensee shall only have the rights to the Provided Software that are specified in the currently valid License Terms and Conditions of BELLO VISTA TECHNOLOGIES PVT LTD.
2.3 Limited Validity of the License
Until the Company has been paid the full fee on behalf of the Licensee for the granting of licensing rights (i.e. the License fee), the Licensee shall only have a temporary right to use the Provided Software, and the Company may, at its sole discretion, ensure the temporary nature of the operation of the Provided Software, by enforcing appropriate technical measures including the activation of a disabling access code within the Provided Software etc. The Company is also entitled to revoke the License in the event that the License fee for the use of the Provided Software is not paid for any reason whatsoever to the bank account of the Company within the due period and in the full amount – In such case, the Licensee shall be obliged: to return any documentation related to the Provided Software as well as any media containing installation files; to evidence the destruction of any back-up installations or installation files for the Provided Software; not to use the Provided Software in any respect; and to enable the representatives of the Company to inspect the fulfillment of these obligations.
2.4 Non-transferability of the Granted License
The License to use the Provided Software shall be granted to the Licensee solely for its internal business use (except where the License permits the provision of services through the Provided Software to other persons, in which case the Licensee may proceed in accordance with the content of such License). The Licensee may not, either for or without consideration, return service, or payment, in any way further assign the rights and duties arising from the granted License, or loan, rent, sub-license, or in any other manner transfer the Provided Software, or use the same as collateral or as security with respect to the Licensee's or any other person's obligations. Where the License is granted for the purpose of providing services to other persons through the Provided Software (outsourcing), the Provided Software may only be used for the provision of services to another person whose identity has been reported in advance to and subsequently confirmed by the Company in the License Certificate authorising the use of the Provided Software.
2.5 Changes to the License
The Licensee may not use the Company's Software in a scope exceeding the License granted to it (e.g. by involving a higher number of users, terminals, or servers etc.), or use the License in a manner other than the one determined hereunder (e.g. as a terminal License for servers etc.), without the prior written (or electronically confirmed in case of electronic License activation procedure) consent of the Company (thereby extending the License Certificate) and without paying additional fees based on the Company's valid price list. Should the Licensee use any of the Company’s Software in a manner other than that permitted under the License Terms and Conditions of BELLO VISTA TECHNOLOGIES PVT LTD , or in a scope other than that permitted under the License Terms and Conditions of BELLO VISTA TECHNOLOGIES PVT LTD , without the prior written consent of the Company, the Licensee shall pay the Company a contractual penalty amounting to twice the price of the Company's Software License which the Licensee would have needed to acquire to use the Company's Software to the extent and for the purpose that it in fact uses the Company's Software. Payment of the stated contractual penalty shall not affect the Company's right to terminate the validity of any License granted to the Licensee without entitling the Licensee to receive any settlement or reimbursement of any previously paid price for the License.
2.6 Copying the Provided Software
The Licensee is authorised to make one back-up copy of the installation disks/files for the Provided Software. The Licensee may not use the back-up copy of the Provided Software within the scope of its regular activities, or for training or demonstration purposes. The Licensee agrees to mark the back-up copy with the relevant number of the License, as well as with a statement regarding the Company's intellectual property rights and the fact that this is strictly a back-up copy, and with identification labels containing the details of the period for which the License shall be granted. With the exception of the back-up copy, the Licensee may not make copies of the Provided Software for any purpose. BELLO VISTA TECHNOLOGIES PVT LTD
2.7 Altering the Provided Software
The Licensee may not conduct reverse engineering, decompile, or disassemble the Provided Software or any other Software of the Company, and it may not reconstitute the source code of the Provided Software or any other Software of the Company, except in cases where such a restriction is not permitted under governing law.
2.8 Infringement of Rights related to the Provided Software
The Licensee undertakes to promptly inform the Company of any case of which it becomes aware regarding the infringement of the Company's rights in relation to the Company's Software, and in particular, the Provided Software, and to provide the Company with adequate assistance in establishing the Company's claim regarding the infringement of the rights to the Company's Software.
2.9 Warranties
The Company warrants that the Provided Software will operate in accordance with the specifications stated in the technical documentation materials that are included on its provision (hereinafter referred as to the “Documentation”), provided that the Software’s operation does not conflict with any other applications operated by the Licensee, and it is used with compatible HW and technical equipment for which the Provided Software is determined/designed, and is duly installed by a person trained for this purpose (i.e. by a technician of the Company or of an Authorised Partner of the Company), and is duly used in accordance with the specification and purpose of the Provided Software. Since the Provided Software is an up-to-date developed product of the computer technology of its type, and it is currently not possible to test and monitor all potential uses of this Software, the Licensee hereby acknowledges that in view of the surrounding variability, and the continuous development of technical equipment through which the Company's Software is operated and with which it coexists, the Company cannot warrant that the Provided Software is unconditionally error-free. Nevertheless, subject to the Software Support (under Standard Delivery Terms) being active for the relevant License (either automatically or optionally activated) the Company undertakes to use its best endeavours to repair any detected errors, anomalies, or repeated errors that are reported to the Company by the Licensee, and to remedy the same through, at its sole discretion and according to the severity of the error, a “hot fix” (one-off repair) or general repair (service pack or patch or new version), as provided to all users of the relevant version of the Company's Software. The Company hereby also reserves the right to resolve the warranty claim by granting a License to a later version of the Company's Software with relevant functionality. For the period of the provided warranty, support for the relevant version of the Provided Software shall also be made available via the Authorised Partners of the Company.
The Company hereby reserves the right to release repair packs from time to time with respect to any of the Company's Software for the purpose of resolving defects, anomalies, or the limited functionality of any of the Company's Software. Should such repair packs not be promptly installed by the Licensee, the Licensee shall lose all rights arising from the provided warranty.
The Licensee shall also not retain any rights arising from the warranty if the Licensee does not provide the Authorised Partner of the Company or the Company's representative with the appropriate assistance required to determine the causes and the effects of the claimed defect, as well as appropriate assistance required for its remedy. The Licensee is obliged to lodge its warranty claim (i.e. claim for the resolution of a defect in the Provided Software) through the Authorised Partner of the Company which delivered or, as the case may be, which implemented the Provided Software. .
2.10 Automatically activated Software Support
The Company undertakes to automatically activate Software Support (under the terms and conditions and for the period as defined in the Standard Delivery Terms of the Company valid at the moment of activation of such Software Support). BELLO VISTA TECHNOLOGIES PVT LTD
2.11 Use of newer Software versions by Licensee
The Licensee may only use the Provided Software in the version as indicated on the License Certificate with the following exceptions: (i) Subject to the Software Support (under Standard Delivery Terms) being active for the granted License (either automatically or optionally activated) the Licensee may use newer versions of the Provided Software released by the Company within the term of the Software Support being active ; (ii) Where the Company opted to replace the Provided Software version listed in the License Certificate with a new one as a result of fixing of defects of such vision - – in such case the Licensee may use only such replacing version of the Provided Software released by the Company for this purpose; (iii) Where the License is provided in the form of Software rent – i.e. for limited and definite period of time – in such case the Licensee may use newer versions of the Provided Software released by the Company within the term of the Software rent but only until the end of Software rent period.
2.12 Obligations arising from the Operation of the Provided Software
The Provided Software shall be operated and used only for the Licensee's activities, and under the Licensee's supervision and at its liability. The Licensee shall be solely responsible for (a) assessing and evaluating the effectiveness of the Provided Software for its requirements; (b) ascertaining that the Provided Software is appropriately used with respect to its personnel and computer resources, (c) ensuring that all computers programs and hardware used in conjunction with the Provided Software are in particular free from any defects that adversely affect the functionality and operation of the Provided Software, (d) establishing adequate operating supervision and procedures within the organisation of the Licensee, and (e) for preparing or implementing troubleshooting plans including replacement and safeguarding measures (covering regular and adequate data back-ups and the redundancy of critical systems). Where licenses enable the provision of services using the Provided Software to other parties, or the usage of the Provided Software for other parties by the Licensee (outsourcing), the Licensee may use the Provided Software in compliance with the relevant License for provision of services to other parties provided that the Licensee retains full liability for (a) assessing and evaluating the effectiveness of the Provided Software with respect to the assumed requirements, (b) ascertaining that the Provided Software is appropriately used with respect to its personnel and computer resources and, (c) ensuring that all computer programs and hardware used in conjunction with the Provided Software are in particular free from any defects that adversely affect the functionality and operation of the Provided Software, (d) establishing adequate operating supervision and procedures within the organisation where the Provided Software is used, and (e) preparing or implementing troubleshooting plans including replacement and safeguarding measures (covering regular and adequate data back-up and the redundancy of critical systems).
2.13 Liability
The Company shall not be liable for any direct or indirect damage (including, but not limited to, damage in the form of business losses, tax penalties, or other debts to administrative authorities, loss of profit, damage to business relations, and loss or corruption of data) arising on the side of the Licensee or other parties to which the Licensee provides its services as a result of the use of the Software in accordance with the content of a concrete license, or arising from the use of the Provided Software. This shall also apply in cases where the Company has been notified in advance of the possibility of such damage arising. In no case shall the Company's liability towards the Licensee or any third parties arising from the use of the Company's Software, or any amount of damages, exceed the License fee paid by the Licensee for use of the Provided Software, and this liability shall cover all of the Licensee's claims for damages against the Company arising from the granting of the License to the Provided Software and its use by the Licensee. The Company shall also not be liable for any damage caused by (i) the activities of third parties, or by the services which they provide, (ii) the use of other Software, or (iii) the neglected maintenance of the Provided Software (e.g. non-installation of available service packs etc.), including any and all damage caused by other delivered Software or services provided by Authorised Partners of the Company. BELLO VISTA TECHNOLOGIES PVT LTD
2.14 Governing Law
This Agreement shall be governed by and interpreted, construed and enforced in accordance with the laws of the Republic of India.
2.15 Severability
In the event that any provision of this Agreement is held by a court of competent jurisdiction to be legally ineffective or unenforceable, the validity of the remaining provisions shall not be affected.
2.16 Waiver
The waiver by either party of a breach of or a default under any provision of this Agreement by the other party shall not be construed as a waiver of any subsequent breach of the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy by such party.
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