This AGREEMENT is made effective on the date of the purchase of the software between Webkul Software Pvt. Ltd.,Company incorporated under the Companies Act, 1956 (hereinafter referred to as “Licensor”), and the purchaser of the software/ product (hereinafter referred to as “Licensee”).
Licensor is a web and mobile product based organization engaged in the business of developing and marketing software for enterprise level e-commerce businesses. It is an ISO and NSR (NASSCOM) certified organization having a team of more than 150 creative engineers which come from different backgrounds. It has developed more than 700 web extensions and apps in the past few years for open source platforms which are used and trusted globally. Licensee now wishes to obtain license, and Licensor wishes to grant a license, to allow use of the software so purchased in developing the e-commerce business website/ mobile app of the Licensee, subject to the terms and conditions set forth herein.
THEREFORE, with the intent to be legally bound, the parties hereby agree as follows:
As used in this Agreement, the following capitalized terms shall have the definitions set forth below:
“Derivative Works” are works developed by Licensee, its officers, agents, contractors or employees, which are based upon, in whole or in part, the Source Code and/or the Documentation and may also be based upon and/or incorporate one or more other preexisting works of the Licensor. Derivative Works may be any improvement, revision, modification, translation (including compilation or recapitulation by computer), abridgment, condensation, expansion, or any other form in which such a preexisting work may be recast, transformed, or adapted. For purposes hereof, a Derivative Work shall also include any compilation that incorporates such a preexisting work.
“Documentation” is written, printed or otherwise recorded or stored (digital or paper) material relating to the Software and/or Source Code, including technical specifications and instructions for its use including Software/ Source Code annotations and other descriptions of the principles of its operation and instructions for its use.
“Improvements” shall mean, with respect to the Software, all modifications and changes made, developed, acquired or conceived after the date hereof and during the entire term of this Agreement.
“Source Code” is the computer programming source code form of the Software in the form maintained by the Licensor, and includes all non-third-party executables, libraries, components, and Documentation created or used in the creation, development, maintenance, and support of the Software as well as all updates, error corrections and revisions thereto provided by Licensor, in whole or in part.
For the consideration set forth below, Licensor hereby grants to Licensee, and Licensee hereby accepts the worldwide, non-exclusive, perpetual, royalty-free rights and licenses set forth below:
Rights and Responsibilities.
Each of the parties represents and warrants to the other as follows.
Licensor represents and warrants that it is the exclusive owner of all copyright/ intellectual property in the Software (including the Source Code) and has good and marketable title to the Software (including the Source Code) free and clear of all liens, claims and encumbrances of any nature whatsoever (collectively, “Liens”). Licensor’s grant of license and rights to Licensee hereunder does not, and will not infringe any third party’s property, intellectual property or personal rights.
In the event this Agreement is terminated for any reason, the provisions set forth in Sections 2(a), 2(b), and 2(c) shall survive.
The Licensee release the Licensor from, and agree to indemnify, defend and hold harmless the Licensor (and its officers, directors, employees, agents and Affiliates) against, any claim, loss, damage, settlement, cost, taxes, expense or other liability (including, without limitation, attorneys’ fees) (each, a “Claim”) arising from or related to: (a) any actual or alleged breach of any obligations in this Agreement; (b) any refund, adjustment, or return of Software,(c) any claim for actual or alleged infringement of any Intellectual Property Rights made by any third party or damages related thereto; or (d) Taxes.
The Licensor will not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses arising out of or in connection with the Software, whether in contract, warranty, tort etc. (including negligence, software liability, any type of civil responsibility or other theory or otherwise) to the Licensee or any other person for cost of software, cover, recovery or recoupment of any investment made by the Licensee or its affiliates in connection with this Agreement, or for any other loss of profit, revenue, business, or data or punitive or consequential damages arising out of or relating to this Agreement. Further, the aggregate liability of the Licensor, arising out of or in connection with this Agreement or the transactions contemplated hereby will not exceed at any time, or under any circumstances, the total amounts received by the Licensor from the Licensee in connection with the particular software giving rise to the claim.
The Licensor will not be liable for any delay or failure to perform any of its obligations under this Agreement by reasons, events or other matters beyond its reasonable control.
The Licensor and Licensee are independent legal entities, and nothing in this Agreement will be construed to create a partnership, joint venture, association of persons, agency, franchise, sales representative, or employment relationship between the parties. The Licensee will have no authority to make or accept any offers or representations on behalf of the Licensor. The relationship between the parties is that of Licensor and Licensee only, and the rights, duties, liabilities of each party shall be governed by this Agreement.
The Licensor may amend any of the terms and conditions contained in this Agreement at any time and solely at its discretion. Any changes will be effective upon the posting of such changes on the Portal/ website, and the Licensee is responsible for reviewing these changes and informing itself of all applicable changes or notices. The continued use of a software by the Licensee after posting of any changes by the Licensor, will constitute the acceptance of such changes or modifications by the Licensee.
This Agreement :
Licensee cannot assign, pledge or otherwise transfer, whether by operation of law or otherwise, this Agreement, or any of its obligations hereunder, without the prior written consent of Licensor, which consent shall not be unreasonably withheld.
Unless otherwise specifically provided herein, all notices, consents, requests, demands and other communications required or permitted hereunder:
shall be deemed to have been given on the date of receipt by the addressee, as evidenced by a receipt executed by the addressee (or a responsible person in his or her office), the records of the Party delivering such communication or a notice to the effect that such addressee refused to claim or accept such communication, if sent by messenger, mail or express delivery service.All such communications shall be sent to the following addresses or numbers, or to such other addresses or numbers as any party may inform the others by giving five days’ prior notice:If to Webkul Software Pvt. Ltd.:
Webkul Software Pvt. Ltd.
A-67, Sector 63, NOIDA – 201301,
Uttar Pradesh, India
If to Licencee:
At the address mentioned by the Licencee
(at the time of placing order of generating Invoice)
It is the intent of the parties that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies of India in which enforcement hereof is sought. In furtherance of the foregoing, each provision hereof shall be severable from each other provision, and any provision hereof which is/ becomes unenforceable shall be subject to the following:
If any dispute arises between the Licensor and the Licensee at any time, in connection with the validity, interpretation, implementation or alleged breach of any provision of this Agreement, the same shall be referred to a sole Arbitrator who shall be an independent and neutral third party appointed exclusively by the Licensor. The Licensee shall not object to the appointment of the Arbitrator so appointed by the Licensor. The place of arbitration shall be Delhi, India. The Arbitration & Conciliation Act, 1996 as amended by The Arbitration & Conciliation (Amendment) Act, 2015, shall govern the arbitration proceedings. The arbitration proceedings shall be held in the English language.
This document is an electronic record in terms of Information Technology Act, 2000 and the amended provisions pertaining to electronic records in various statutes as amended by the Information Technology Act, 2000. This electronic record is generated by a computer system and does not require any physical or digital signatures.