SOFTWARE LICENSE AGREEMENT

 

ATTENTION: THIS IS A LICENSE, NOT A SALE. THE QUILLPAD SOFTWARE APPLICATION PRODUCT IS PROVIDED UNDER THE FOLLOWING AGREEMENT AND ALL APPLICABLE ADDENDA WHICH DEFINE WHAT YOU MAY DO WITH THE PRODUCT AND CONTAINS LIMITATIONS ON WARRANTIES AND/OR REMEDIES. THIS LICENSE IS GRANTED BY TACHYON TECHNOLOGIES PVT. LTD. AND INCLUDES THE FOLLOWING:

 

THIS AGREEMENT IS A LEGALLY BINDING CONTRACT THAT SHOULD BE READ IN ITS ENTIRETY. BY INSTALLING OR USING THIS SOFTWARE OR ANY MODULE OR PORTION OR FEATURE THEREOF YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.

 

This Agreement is a legal agreement between you (either an individual or an entity), (the "Licensee"), and Tachyon Technologies Private Limited (the "Licensor"), in respect of Quillpad (the “Software”) which may include associated media, printed materials, and "online" or electronic documentation (collectively the “Product"). The Product also includes any updates and supplements to the original Product as may be provided to you from time to time by the Licensor. The Product does not include new releases to Software.

 

For purposes hereof, you (and all variations thereof, such as “your”) means the individual person installing or using the Product on his or her own behalf; or, if the Product is being installed on behalf of an organization, such as an employer, "you" means the organization for which the Product is installed and it is represented hereby that such organization has authorized the person accepting the Agreement to do so on its behalf.  For purposes hereof the term "organization," without limitation, includes any partnership, company, corporation, association of persons, limited liability partnership, joint stock company, trust, joint venture, labor organization, unincorporated organization, or governmental authority.

By accessing, storing, loading, installing, executing, displaying or copying the Product into the memory of a computer or otherwise using the functionality of the Product in accordance with  its documentation (henceforth "Operating"), you are deemed to have agreed and to be bound by the terms of this Agreement. If you do not agree to the terms and conditions of this Agreement, the Licensor is unwilling to license the Product to you.  In such event, you may not Operate or use the Product in any way.

 

This Product will not install on your computer unless or until you accept the terms of this Agreement. Since this Agreement is in electronic form and constitutes an electronic record within the meaning of applicable laws, your acceptance of the terms hereof shall be signified by your clicking on the “I Agree” button appearing on the window containing this Agreement, whereupon you expressly agree to be bound by all the terms and conditions of this Agreement.

 

RECITALS

 

  Tachyon is the sole and absolute owner of the software product bearing the brand name “Quillpad”, a predictive transliteration technology that enables users to type in several Indian languages which is wholly conceived, developed and created by Tachyon.;

 

 

TERMS AND CONDITIONS

 

1.  DEFINITIONS

 

Capitalised terms used in this Agreement, shall have the respective meanings set forth in this Clause 1 and any other capitalised terms used in the body of this Agreement and not defined in Clause 1 shall have such meaning as defined or intended in the body of the Agreement:

 

1.1 “Agreement" means this Software License Agreement and includes any amendments or modifications thereto.

 

1.2 “Confidential Information” means and includes all Documentation, Intellectual Property, this Agreement and any other data, information or samples provided by Tachyon to the Licensee under this Agreement.

 

1.3 "Documentation" means the documents as detailed in this Agreement, including but not limited to electronic data and hard copies, to use or manage the Software.

 

1.4 “Intellectual Property" in relation to the Software or Module(s) means:

 

(a) all proprietary inventions (whether patentable or non-patentable and whether or not reduced to practice), all improvements thereto and all patents, patent applications, and patent disclosures, together with all re-issuances, continuations, continuations-in-part, revisions, extensions and re-examinations thereof;

 

(b) all proprietary trademarks (whether registered or not), service marks, logos, trade names and corporate names, together with all translations, adaptations, derivations and combinations thereof, including all goodwill associated therewith and all applications, registrations and renewals in connection therewith;

 

(c) all proprietary copyrightable works (whether registered or not), source code, object code, derivative works, diagrams, flow charts, designs, text and all applications, registrations and renewals in connection therewith;

 

(d) all proprietary ideas, diagrams, designs, models, prototypes, sketches, drawings, blue-prints, formulae/equations, processes, methods, know-how, information arising out of analyses of data, techniques, flow-charts, algorithms and all results arising out of technical researches;

 

(e) all proprietary trade secrets, technical or confidential business information;

 

(f) all other proprietary rights of whatsoever description whether or not protected and whether or not capable of protection; and

 

(g) all copies and tangible embodiments of the above regardless of form and medium.

 

1.5 “Module” or “Modules” means the standalone portion(s) of the Software or any derivate works of such standalone portion(s) of the Software, consisting of distinct source codes and capable of independently executing pre-defined functions.

 

1.6 "Party" or "Parties" means Tachyon and the Licensee either individually or jointly.

 

1.7 “Software” means Quillpad version 1.2 along with all its Modules developed by Tachyon and provided either by electronic download, or Internet-based delivery, or by any other method of distribution such as disks or other physical media and includes related Documentation.

 

1.8 “Source Code” means the files that contain all flowcharts, instructions, functions, loops, and other statements written in human readable language that instruct the Software or its Modules how to function and includes any modifications, enhancements, revisions or updates in versions to the Software or its Modules.

 

1.9 “Object Code” means a form of software code resulting from the translation or processing of the Source Code by a computer into machine readable language which is appropriate for execution or interpretation of the software.

 

2.  TERM

 

The term of this Agreement is one year years from the date of execution (”Term”). This Agreement may be renewed upon expiry of the Term, for such additional period and upon such new terms and conditions as the Parties may mutually agree and set out in a fresh agreement. Such intention to renew the relationship will be communicated 3 months prior to the expiry of the Term.

 

3.  RIGHTS AND DUTIES OF THE LICENSEE

 

3.1 Tachyon hereby grants to the Licensee and the Licensee accepts from Tachyon, subject to the terms and conditions of this Agreement and during the Term, a non-exclusive, non-transferable, limited license to use and display the Software in Licensee website, (cumulatively the “Licensed Rights”), subject to the restrictions and covenants set out hereunder.

 

3.2 The Licensed Rights shall not include any rights to copy ,sell, transfer, sub-license, rent, lease, supply, publish or distribute the Software (cumulatively “Restrictions”). For the avoidance of all doubts, regardless of the rights, powers and authority customarily vested in a Licensee, or as may be interpreted under any law, statute or court ruling, the Licensee shall only be entitled to the Licensed Rights which will be subject in their exercise to the Restrictions and other limitations set out in this Agreement.

 

3.3 At all times during use of the Software in its website, the Licensee shall give us credit by allowing us to displaying a phrase (text, font, styling and other specification for phrase will be decided by Tachyon) with a hyperlink to www.quillpad.in. Further, the Licensee shall not make any changes to or in any way hide, deface or camouflage any logos or trademarks or copyright notices inherent in the Software.

 

3.4 Tachyon reserves all rights, power and authority in relation to the Software not specifically granted to the Licensee under this Agreement.

 

3.5 During the term of this Agreement and six months thereafter, the Licensee, its parent body, or any of its subsidiary or affiliates, will not develop or cause to develop a product similar to the Software or create any Modules that could be attached to or be capable of attaching to or being used with the Software or any other application.

 

3.6  The Licensee will indemnify Tachyon from any liability arising directly or indirectly, through its use of the Software.

 

3.7 The Licensee shall be responsible for installation and maintenance of the Software.

 

4. RIGHTS AND DUTIES OF TACHYON

 

4.1 Tachyon will, generate and hand over to the Licensee by electronic download, or Internet-based delivery.

 

4.2 Tachyon will not liable under any law- torts and/or contract for any loss or damages directly or indirectly caused to the Licensee or any third party by using the Software.

 

5.  CONSIDERATION

 

In consideration for the License to use the Software, Licensee shall permit Tachyon to use all the contents / discussions / articles/ comments made in Licensee’s website by using the Software.

 

6.  INTELLECTUAL PROPERTY 

 

6.1  Tachyon has and will continue to have complete, sole and exclusive ownership of the intellectual property in the Software, Documentation, the Source Code, Object Code, other related binaries pertaining to the Software.  Provided however that a copy of the Software will be given to the License for a limited period of one (1) year.

 

6.2  The Licensee acknowledges and agrees that the Software includes components of open source elements which are provided by third parties for use in the run time environment of the Software (“Third Party Software”) and that the licensor of any such Third Party Software embedded in the Modules has a proprietary right and interest in such Third Party Software. Tachyon does not provide any warranty of such Third Party Software and is not responsible for the performance of such Third Party Software.

 

6.3  The Licensee acknowledges and agrees that it has been conferred the Licensed Rights alone and does not have any rights, title or interest in and to the Source Code  or Object Code. All rights, interest and title to the Source Code will remain exclusively and absolutely with Tachyon.

 

6.4  The Licensee will not copy, decompile, reverse engineer, modify, translate, localise or create derivative works or otherwise inspect the functionality of the Software or derive the Source Code(s) of the Software.

 

6.5  The Licensee hereby acknowledges and agrees that Tachyon reserves the sole right and discretion to make any modifications and Updates to the Software or any of its Modules or to remove any Module(s) or the Software from the market, and/or to cease development or support in relation to the Software or any Module. However, for any such Updates or modification released and supplied free of cost by Tachyon, Tachyon does not represent that it will continue to develop or service any particular Module indefinitely or even for any specific period. Such updates/modifications would be as per the price list defined by Tachyon at that point of time.

 

7.  CONFIDENTIALITY

 

7.1  Use and Disclosure 

 

During the tenure of this Agreement and at all times thereafter, the Licensee will (a) hold all the Confidential Information in strict trust and confidence, (b) refrain from using or permitting others to use the Confidential Information in any manner or for any purpose not expressly permitted or required by this Agreement, (c) refrain from disclosing or permitting others to disclose any Confidential Information to any third party without obtaining Tachyon’s express prior written consent on a case-by-case basis, and (d) limit access to the Confidential Information to its employees or agents who have a reasonable need to have such access in order to perform the services. The Licensee will ensure that each of its employees and agents who will have access to any Confidential Information or perform any services in relation to the Confidential Information has entered into a binding written agreement to safeguard the Confidential Information at least to the same degree as specified in this Clause 9.1.

 

7.2  Standard of Care

 

The Licensee will protect the Confidential Information from any unauthorized use, access, or disclosure in the same manner as the Licensee protects its own confidential or proprietary information of a similar nature.

 

7.3  Exceptions

 

The Licensee’s obligations under Clauses 7.1 and 7.2 above will not extend to any particular information that the Licensee can prove, by clear and convincing evidence that, (a) the Licensee lawfully knew prior to Tachyon’s first disclosure to the Licensee, (b) a third party rightfully disclosed to the Licensee free of any confidentiality duties or obligations, or (c) is, or through no fault of the Licensee has become, generally available to the public or (d) is required to be disclosed in accordance with applicable laws, regulations, court, judicial or other government order, provided that reasonable notice prior to such disclosure is given by the Licensee. 

 

8. WARRANTIES

 

8.1  Tachyon makes no warranties, express or implied, by statute, custom or otherwise, to the Licensee in relation to the Software. Tachyon specifically disclaims all warranties relating to the Software, including all warranties with respect to the performance of the Software. The Licensee shall not make or pass on to any third party any warranty or representation on behalf of Tachyon.

 

8.2 Tachyon specifically disclaims any implied warranty of merchantability or fitness for a particular purpose in relation to the Software, including in relation to the Licensee’s website or the specific or general purpose for which the Software has been licensed by the Licensee for use on its website. Further Tachyon does not warrant that the operation of the Software will be error free.

 

8.3 Tachyon does not warrant the integration of the Software into any website.

 

9.  LIMITATION OF LIABILITIES

 

9.1  Tachyon’s liability arising out of any term of this Agreement and/or the order or delivery of any Software copy shall not exceed Rs.10,000. In no event shall Tachyon be liable for the costs of procurement of substitute software products or services.

 

9.2  Tachyon will have no liability or any responsibility whatsoever for any loss of the Licensee’s existing hardware or software framework or database.

 

9.3  Tachyon shall in no event be liable to the Licensee for loss of profits, or special, indirect, incidental, consequential or exemplary damages, including, but not limited to, losses arising from business interruption, or losses whether or not occurring in the normal course of business or loss or corruption of data even if such loss was reasonably foreseeable or either party had been advised of the possibility of incurring the same or any losses incurred as a result of or relating to breach of security, hacking or computer espionage or as a result of any actions by a governmental authority in connection with the supply, use, or performance of the Software.

 

9.4 Tachyon shall have no liability or any responsibility whatsoever, for the Software’s failure to execute or integrate.

 

10.  RELATIONSHIP BETWEEN THE PARTIES

 

10.1  Notwithstanding anything to the contrary contained herein, Tachyon and the Licensee shall operate as entirely independent entities, on a principal to principal basis and there shall be no employer-employee or principal-agency relationship between Tachyon and the Licensee or any of their respective employees. All financial obligations of the Licensee is the sole responsibility of the Licensee and all sales and other agreements between the Licensee and third party are the Licensee’s exclusive responsibility and shall have no effect on the Licensee’s obligations under this Agreement.

 

10.2  The Parties agree that Tachyon shall have the unrestricted right to sell/ license the Software in the name “Quillpad” or any other brand name and to appoint, at any time licensees with respect to the Software and the Licensee shall have no right to object to such appointment.

 

11.  TERMINATION

 

11.1  This Agreement may be terminated immediately:

 

1. By Tachyon, for the Licensee’s breach of its obligations set out in Clause 6 above.
2. By Tachyon, for the Licensee’s breach of its confidentiality obligations set out in Clause 7 above.

 

11.2  This Agreement may be terminated by either Party for convenience by giving thirty (30) days prior written notice to the other Party (“the Letter of Termination”).  Receipt of the Letter of Termination by a Party shall cause the thirty (30) day notification period (the “Notification Period”) to begin.

 

11.3  Either Party may terminate this Agreement immediately upon providing written notice to the other Party if:

 

(a)  other Party is in process of dissolution or liquidation or wound up according to the laws of India or a petition under any bankruptcy law is filed by or against the other party;

(b)  the other Party executes an assignment to assign its right under this Agreement for the benefit of creditors;

(c)  a receiver is appointed for the other Party’s assets;

(d)  other Party is declared insolvent or bankrupt by the competent authority or takes advantage of any insolvency or any similar statute; or

(e) the other Party commits a material breach of this Agreement (including persistent breaches which, by their persistence, have become material) which it fails to remedy within thirty (30) days of receiving written notification requiring it to do so.

 

11.4  During any notice period mentioned in either Clause 11.2 or 11.3, the rights, duties and responsibilities of Tachyon and the Licensee shall continue in full force and effect, including monetary obligations (if any), unless prevented from reasons of Force Majeure as mentioned in Clause 12.1 of this Agreement.

 

12. MISCELLANEOUS

 

12.1  Force Majeure

 

Apart from the Licensee’s obligations under Clauses 3, 6 and 7, neither Party shall be liable for failure to perform any of its obligations hereunder if such performance is prevented, restricted or interfered with by reason of war or other violence; any law, or regulation of any government; fire, or other causality or accident; strike or labour disputes; or any act or condition whatsoever beyond the reasonable control of such Party (each such occurrence being hereinafter referred to as a "Force Majeure Event"). If a Force Majeure Event does occur, the Party whose ability to perform is affected shall be excused from performance, to the extent of the restriction or interference.  The Party being affected shall give prompt notice within a period of five days from the date of the Force Majeure Event, providing a description to the other Party of such Force Majeure Event, the cause of the Force Majeure Event and the nature and extent of performance impacted thereby. Provided however that such Party shall use all commercially reasonable efforts to, as soon as possible, avoid or remove such cause of non-performance and shall continue performance hereunder whenever such causes are removed. Provided further, that if any such delay continues for a period of more than 60 days from the date on which notice of the Force Majeure Event is served, the Party not claiming excusable delay shall have the option of terminating this Agreement upon the expiry of such 60-day period without prejudice to the rights and contentions as may be admissible under this Agreement.

 

12.2  Entire Agreement

 

Each Party acknowledges that it has read this Agreement, it understands and agrees to be bound by its terms, and further agrees that this is the complete and exclusive statement of the Agreement between the Parties, which supersedes and merges all prior proposals, understandings and all other agreements and all other communications, oral and written, between the Parties with respect to the subject matter hereof.

 

12.3  Amendment

 

No modifications, alterations, amendment or waivers of any provisions herein contained shall be binding on the Parties hereto unless evidenced in writing signed by duly authorized representatives of both Parties.

 

12.4  Survival

 

  Any provisions of this Agreement which either expressly or by implication, survive the termination or expiration of this Agreement, shall be, subject to the conditions herein complied with by the Parties in the same manner as if the present Agreement is valid and in force.

 

12.5  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 provision shall be modified to the extent necessary to render it, as modified, valid and enforceable under applicable laws, and such invalidity or unenforceability shall not affect the other provisions of this Agreement.

 

12.6  Arbitration

 

Any difference, dispute, controversy or claim which may arise between the Parties out of or in relation to or in connection with this Agreement, or the breach, termination, effect, validity, interpretation or application of this Agreement or as to their rights, duties or liabilities hereunder, shall be settled by way of arbitration proceedings by three arbitrators, one to be nominated by each Party and the third to be appointed by the two appointed arbitrators; provided however that any Party shall be entitled to seek specific performance or injunctive relief by a court having jurisdiction. The arbitration proceedings shall be held in accordance with the (Indian) Arbitration and Conciliation Act, 1996, or any subsequent enactment or amendment thereto. Each of the Parties shall appoint an arbitrator within thirty (30) calendar days of the receipt by a Party of the other Party’s request to initiate arbitration. The two arbitrators so appointed shall then jointly appoint a third arbitrator. The decision of the arbitrators shall be final and binding upon the Parties. The venue of the arbitration shall be at Bangalore, India. The language of the arbitration and the award shall be in English.

 

12.7 Governing Law and Jurisdiction

 

This Agreement shall be governed by and interpreted in accordance with the laws of India and subject to the Clause 12.6 of this Agreement, the courts at Bangalore will have jurisdiction in relation to all disputes pertaining to this Agreement.

 

12.8  Assignment

 

Either Parties may not assign or sub-license, without the prior written consent of each other, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part.

 

12.9 Waiver

 

The waiver or failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.

 

12.10 Non-Solicitation

 

By accepting this Agreement, the Parties agree that they will not at any time during or after termination of this Agreement (i) directly or indirectly solicit any employee of each other, (ii) attempt to influence, persuade or induce, or assist any other person in so influencing, persuading or inducing, any employee of each other.