License Agreement:
Optimizory Technologies Private Limited’s (Hereby referred to as Optimizory) software products are proprietary software applications. Your use of Optimizory software is subject to the terms and conditions as outlined below.
Optimizory End User License Agreement
IMPORTANT – READ CAREFULLY: This End-User License Agreement (EULA) is a legal agreement between you (either an individual or a single legal entity) (Licensee) and Optimizory to use the Software. This EULA applies after the Licensee has received the Software from a Reseller or Optimizory. An amendment or addendum to this EULA may accompany the Software. The Licensee agrees to be bound by the terms of this EULA by installing, copying, downloading or otherwise using the Software or clicking the “I Accept / Agree” button if acquiring the Software on-line. If the Licensee does not agree to the terms of this EULA, you may not install, copy, download or otherwise use the Software or if acquiring the Software on-line by not clicking on the “I Accept / Agree” button.
1. Definitions
Accessible Code means source code that is unprotected and accessible.
Optimizory means Optimizory Technologies Private Limited.
Authorised User means a person who accesses and uses the Software under a User Licence.
Fees mean all fees and expenses payable by the Licensee to Optimizory in acquiring the Software and as applicable any Maintenance or User Licenses.
Maintenance means the provision by Optimizory to Licensee under separate agreement, of Software updates and/or enhancements made generally
available to customers from time to time, and online technical support (and where applicable, phone support) for the sole purpose of addressing technical issues relating to the use of the Software.
OEM Distribution means distribution of the Software as either a bundled add-on to, or embedded component of, another application with such
application being made available to its users as, but not limited to, an on-premises application, a hosted application, a Software as-a-Service offering or a subscription.
Protected Code means any source code that is protected against access by Optimizory or a third party and is not accessible under this EULA.
Reseller means an entity selling and distributing Optimizory products which is authorised by Optimizory to do so.
Software means the Optimizory software that accompanies this EULA, which includes computer software, Accessible Code and Protected Code and
may include associated media, printed materials, “online” or electronic documentation, Internet-based services and Embedded Software.
User License means a license granted under this EULA to the Licensee to permit an Authorised User to use the Software. The number of User Licenses
granted to the Licensee is dependent on the fees paid by the Licensee.
2. Grant of License
Upon Licensee’s acceptance of the EULA. Optimizory grants the Licensee the non-exclusive right to use the Software subject to the following:
2.1 Authorized Users
The licenses granted are subject to the condition that the Licensee must ensure the maximum number of Authorised Users accessing and using the Software concurrently is equal to the number of User Licences for which the necessary Fees have been paid to the Reseller or Optimizory. The Licensee may purchase additional User Licenses at any time on payment of the appropriate Fees to the Reseller or Optimizory.
2.2 Backup
The Licensee is permitted to copy the Software for data protection, archiving and backup purposes.
2.3 Installation and Use of Evaluation License
Optimizory may provide evaluation copies of the Software for customers to assess the Software, which may not have full functionality. If the Software is only provided for evaluation purposes, the rights of the Licensee are limited to this evaluation license which permit the Licensee of EULA (Optimizory End User License Agreement) to download, install, use and operate the Software for a limited period and accessible by a limited number of temporary users as determined by Optimizory (during the evaluation period). On the expiry of the Evaluation Period, the Software will cease to function and the Licensee must remove and delete all copies of the Software in its possession.
2.4 Scope
Each license granted by Optimizory under this EULA is unless otherwise specified in this EULA or agreed by Optimizory in writing; worldwide, non-exclusive, non- transferable and non-sublicensable.
2.5 Duration
Subject to the terms of this EULA and unless terminated earlier in accordance with this EULA, a full license is perpetual and the evaluation license runs for the Evaluation Period.
2.6 Permitted Computers
Except as otherwise agreed in writing by Optimizory, the Licensee must only install the Software and make the Software available for use on hardware systems owned, leased or controlled by the Licensee.
2.7 Responsibility for Non-controlled systems
If Optimizory permits the Licensee to install the Software or make the Software available for use on hardware systems not owned, leased or controlled by the Licensee (Uncontrolled Systems), the Licensee will ensure the terms of this EULA are complied with by users of such Uncontrolled Systems and the Licensee indemnifies Optimizory for all costs, damages and loss Optimizory suffers arising from such installation or use of the Software on Uncontrolled Systems.
2.8 Service Provisioning using Optimizory products
Unless explicitly agreed to by Optimizory, Licensee cannot provide hosted solutions to customers, using Optimizory products.
2.9 Limitation on number of licenses per instance of product
One instance of product will support only one license at any point of time and two or more licenses cannot be installed on the same instance of the product.
3. Fees
The Licensee must pay all Fees by their due date. Failure to pay Fees by the due date will result in the immediate termination of the licenses granted under this EULA.
4. Embedded Software
4.1 Rights
The Licensee acknowledges the Software contains Embedded Software and that in addition to the obligations of this EULA, additional obligations may apply in relation to any use of Embedded Software by the Licensee which is not in accordance with the use of the Software as permitted under the terms of this EULA. In such circumstances the Licensee must consult the relevant third party to acquire any necessary licenses and consents in relation to its use of any Embedded Software
5. Reservation of Rights and Ownership
Optimizory reserves all rights not expressly granted to the Licensee in this EULA. The Software and all copies thereof are protected by copyright and other intellectual property laws and treaties. Optimizory or relevant third parties own the title, copyright, and other intellectual property rights in the Software and all subsequent copies of the Software. The Software is licensed, not sold and the Licensee does not acquire any rights of ownership in the Software.
6. Support and Maintenance
6.1 Additional Software / Services
This EULA applies to updates, supplements, add-on components, or Internet-based services components, of the Software (Supplementary Software) that Optimizory may provide to the Licensee or make available to the Licensee after the date the Licensee obtains its initial copy of the Software, unless Optimizory provides other terms along with any Supplementary Software. Optimizory reserves the right to discontinue any Internet-based services provided to the Licensee or made available to the Licensee through the use of the Software.
6.2 Support and Upgrades
Any support services provided by Optimizory will be subsequently described in separate written material provided by Optimizory to the Licensee and may be the subject to the payment of additional Fees
7. Licensee Obligations
7.1 Positive Obligations
Licensee must at all times ensure that only an Authorised User uses the Software and only in accordance with the terms and conditions of this EULA.
7.2 Negative Obligations
Licensee must not, whether through negligent act or omission, or without the prior written consent of Optimizory, which may be withheld at Optimizory’s discretion and include certain conditions: (a) decompile, reverse engineer, disassemble, modify, adapt, create derivative works from, or otherwise attempt to derive, any portion of the Software; (b) directly or indirectly access or use any Software module independently of the rest of the Software; (c) sell, sublicense, redistribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine readable form the Software or any data/information not owned by the Licensee which is provided to Licensee through the Software to a person who is not an Authorised User; (d) vary or amend the Software (including any Protected Code or Accessible Code); (e) except as otherwise permitted in this EULA, publish, promote, broadcast, circulate or refer publicly to the Optimizory name, trade name, trademark, service mark or logo (f) commit any act or omission the likely result of which is that Optimizory’s or any of its third party supplier’s reputation will be brought into disrepute or which act or omission could reasonably be expected to have or does have a material and adverse effect on Optimizory’s interests; (g) distribute the Software via OEM Distribution without entering into a separate OEM Distribution Agreement with Optimizory or (h) copy or embed elements of the Accessible Code contained in the Software into other applications.
7.3 Protection Mechanisms
The Software includes license protection mechanisms that are designed to manage and protect the intellectual property rights of Optimizory and its third party suppliers. Licensee must not modify or alter those features to try to defeat the Software use rules that the license protection mechanisms are designed to enforce. Any such attempt by the Licensee will result in the immediate termination of any license granted under this EULA.
8. Notification
8.1 General
If the Licensee discovers it has breached any of its obligations under this EULA and in particular the obligations in clause 7, the Licensee must immediately report such breach to Optimizory, in writing.
8.2 Penalties
Where a breach involves the distribution or use of Software outside of the User License or any Additional User License, in addition to any other right or claim that Optimizory or any third party owner of Embedded Software may have against Licensee, to retroactively charge Licensee, in addition to any other Fees payable by Licensee under this EULA, a fee calculated based on the number of prohibited distributions or uses times the respective list prices that Optimizory and/or any third party owner of Software charges for the Software.
9. Investigation of Unauthorised Use and Distribution
If Optimizory reasonably suspects the Software has been distributed to or obtained by any person or party without Optimizory’s prior written consent, that Embedded Software is being varied or accessed or used independently of the Software or that Licensee is otherwise breaching a term of this EULA and in particular its obligations under clause 7, Optimizory reserves the right to require the Licensee to provide an unqualified certificate executed by the Licensee’s auditor verifying compliance with the terms of this EULA. Such requests shall be made no more frequently than once per calendar year. If such an unqualified certificate is not received by Optimizory within ninety (90) calendar days of being required, it will be considered that a breach of this EULA has occurred allowing Optimizory to terminate the licenses granted under this EULA.
10. Termination
10.1
Without prejudice to any other rights and in addition to any other termination rights in this EULA, Optimizory may terminate this EULA if the Licensee fails to comply with the terms and conditions of this EULA. Immediately upon termination of a license granted under this EULA, the Licensee must at its own cost: (a) cease permitting access to and ensure that all Authorised Users immediately cease all use of the Software; and (b) remove all copies of the Software from its computer systems or any Uncontrolled Systems; (c) provide Optimizory with written certification that it has destroyed all copies of the Software including all Accessible Code in its possession, custody or control.
10.2
The decommissioning of the Software by the Licensee will have, as a consequence, the termination of this EULA between Optimizory and the Licensee.
11. Infringement Indemnification
11.1 Infringement by Software
If the Software becomes, or in the opinion of Optimizory may become, the subject of a claim of infringement of any third party’s intellectual property rights, Optimizory may, at its option and in its discretion: (i) procure for Licensee the right to use the Software free of any liability; (ii) replace or modify the Software to make it non-infringing; or (iii) refund any License Fees related to this Software paid by Licensee. The foregoing states the sole liability of Optimizory and the exclusive remedy of Licensee for any infringement of intellectual property rights by the Software or any other items provided by Optimizory under this EULA.
11.2 Licensee’s Use
Licensee will indemnify and hold harmless Optimizory against all costs, expenses, losses and claims made against Optimizory as a result of any infringement of a third party’s intellectual property rights arising from the Licensee’s or its Authorised User’s modification to the Software or combination of the Software with other products by Licensee or any of its Authorised Users
11.3 Third Party Products
Licensee acknowledges and agrees that if Licensee breaches this EULA and Optimizory or any third party owner of Embedded Software suffers any loss, damage cost or expense directly or indirectly in connection with the breach, Optimizory or the relevant third party owner of the Embedded Software may bring an action directly against Licensee.
12. Exclusion of Warranties
To the maximum extent permitted by applicable law in the jurisdiction in which the Software or any Supplementary Software is supplied or Maintenance provided, Optimizory and its third party suppliers provide the Software and any Maintenance AS IS AND WITH ALL FAULTS, and except otherwise expressly contained in the EULA, hereby disclaim all other warranties and conditions, whether express, implied or statutory.
13. Limitation of Liability
13.1 Non-excludable Warranties
The Licensee may have remedies against Optimizory imposed by law or statute which can not be excluded by Optimizory and its third party suppliers. To the extent the Licensee has such legal remedies Optimizory or its third party suppliers then to the fullest extent permitted by law Optimizory and its third party supplier’s liability is limited (a) at Optimizory’s option, to: (i) in the case of the Software: 1) repairing or replacing the Software; or 2) the cost of such repair or replacement; and (ii) in the case of Maintenance services: 1) re-supply of the services; or 2) the cost of having the Maintenance services supplied again or if the above limitation is not applicable then (b) to the greater of the actual damages Licensee incurs in reasonable reliance on the Software up to the amount actually paid by the Licensee for the Software, during the preceding year from the date of reporting the issue.
13.2 Limitation of Liability for other Losses
Subject to section 13.1, notwithstanding any damages Licensee might incur for any reason whatsoever to the maximum extent permitted by applicable law the entire liability of Optimizory and any of its third party suppliers under any provision of this EULA and Licensee’s exclusive remedy hereunder shall be limited to the greater of the actual damages Licensee incurs in reasonable reliance on the Software up to the amount actually paid by the Licensee for the Software.
13.3 Consequential Loss
Notwithstanding anything else in this section 13, to the maximum extent permitted by applicable law, in no event shall Optimizory or its third party suppliers be liable for any special, incidental, punitive, indirect, or consequential damages whatsoever arising out of or in any way related to the use of or inability to use the Software, the provision of or failure to provide Maintenance or other services, information, software, and related content through the Software or otherwise arising out of the use of the Software, or otherwise under or in connection with any provision of this EULA, even in the event of the fault, tort (including negligence), misrepresentation, strict liability, breach of contract or breach of warranty of Optimizory or any third party supplier, and even if Optimizory or any third party supplier has been advised of the possibility of such damages.
14. Publicity Rights
Licensee grants Optimizory the right to include Licensee as a customer in Software promotional material. Licensee can deny Optimizory this right at any time by submitting a written request via email to support@Optimizory.com, requesting to be excluded from Software promotional material or selecting an option on user profile/ registration page (wherever available). Requests made after purchasing may take thirty (30) calendar days to process.
15. Amendment
This EULA may not be amended except with the written agreement of Optimizory whose consent may be withheld in its complete discretion without any requirement to provide reasons.
16. Assignment
Licensee may assign this EULA to: (i) succeeding parties in the case of a merger, acquisition or change of control; or (ii) if Licensee is a supplier to a government agency; provided, however, that in each case, (a) Optimizory is notified in writing within ninety (90) days of such assignment, (b) the assignee agrees to be bound by the terms and conditions contained in this EULA and (c) upon such assignment the assignee makes no further use of the software licensed under this EULA . Optimizory may assign its rights and obligation under this EULA without consent of Licensee. Any permitted assignee shall be bound by the terms and conditions of this Agreement.
17. Restrictions
The export of the Software from the country of original purchase may be subject to control or restriction by applicable local law. Licensee is solely responsible for determining the existence and application of any such law to any proposed export and for obtaining any needed authorization. Licensee agrees not to export the Software from any country in violation of applicable legal restrictions on such export.
18. Governing Law and exclusions
18.1 Applicable Law
This EULA is governed by the laws of New Delhi, India.
18.2 Arbitration
Except in circumstances where a party seeks urgent injunctive relief, before commencing any court proceedings, if any disputes arises under this EULA the parties will negotiate in good faith to resolve the dispute and if the dispute has not been resolved within sixty (60) calendar days by the relevant parties using their best efforts to resolve the dispute, the dispute will be referred to arbitration and determined judicial system of India, New Delhi.
19. Entire Agreement and Severability
This EULA (including any addendum or amendment to this EULA which is included with the Software) is the entire agreement between the Licensee and Optimizory relating to the Software and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.