IMPORTANT LEGAL NOTICE TO ALL USERS: CAREFULLY READ THE TERMS AND CONDITIONS OF THIS LEGAL AGREEMENT BEFORE INSTALLING OR USING THE SOFTWARE OR DOCUMENTATION. THE USE OF THE SOFTWARE AND/ OR DOCUMENTATION BY THE USER SHALL DEEM TO BE ACCEPTANCE BY THE USER OF THESE TERMS AND CONDITIONS.
This is a legal agreement between you, a person or entity (“User” or “Licensee”) who registers and purchases the BaB Software and Infibeam Avenues Limited (“Infibeam” or “Licensor”) regarding your use of the BaB Software. A User may only be a company, businessman, self-employed person, public authority, or public institution (such as a university), who wants to use the BaB Software commercially, and must not be a consumer.
Infibeam and User shall hereinafter be referred to, individually as “Party” and collectively as “Parties”.
If products are not returned to Infibeam, the BaB Software is installed and/or otherwise used, the User acknowledges to have read this Agreement, understood its terms and conditions and agrees to be bound by such terms and conditions. If the User is accepting this Agreement on behalf of a corporation or other legal entity, the User declares to be authorized to do so.
For the purpose of this Agreement, in addition to the terms defined in the description of Parties and the recitals hereinabove: (a) all capitalised words and expressions defined by inclusion in quotation and/ or parenthesis anywhere in this Agreement, have the same meanings as ascribed to such words and expressions; and (b) following words and expressions shall have the meanings as set out in this Clause 1 below:
“Agreement” means this agreement, along with any schedule, annexure, exhibit hereto, and any updated version thereof.
“Arbitration Act” means the Arbitration and Conciliation Act of 1996 or any re-enactment or modification or amendment thereof.
“BaB Software” means BaB Software (BuildaBazar) a comprehensive e-commerce software suite developed by Infibeam Avenues Limited. BaB Software integrates various business functions and processes into a unified system, providing organizations with a centralized solution for creating and operating an e-marketplace. BaB Software offers various features and capabilities namely but not limited to store front design, registration & SSO, scalable catalogue management, search & carting, shipping & taxation, fulfilment, logistics, integrations with third party analytics and many more, that can be collectively referred to as a suite for e-commerce.
“Combination Use” shall have the meaning ascribed to it in Clause 8.1 hereof.
“Confidential Information” means: (a) Proprietary Information, (b) IP provided by Infibeam to the User for performance of the obligations under this Agreement as well as any information disclosed by Infibeam to User pursuant to this Agreement, and (c) the terms of this Agreement. Notwithstanding the foregoing, the term Confidential Information does not include information that is: (a) known publicly at the time it was disclosed or becomes publicly known through no fault or action of the receiving Party or any breach of any confidentiality obligation; (b) becomes known to the receiving Party, without restriction, from a source other than the disclosing Party without breach by the receiving Party or otherwise in violation of the disclosing Party’s rights; or (c) disclosed under operation of applicable Law, except that the receiving Party will disclose only such information as is legally required with prompt written notice to the other Party and will use reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed.
“Delivery” shall have the meaning ascribed to it in Clause 4 hereof.
“Documentation” means Infibeam’s standard documentation, in any medium, which is delivered to Licensee under this Agreement, including Infibeam’s standard manuals, program listings, data models, flow charts, logic diagrams, functional specifications, instructions, and complete or partial copies of the foregoing.
“Domain Name” means a domain name is a human-readable address that is used to identify a specific location on the internet. It serves as a way to easily locate and remember a website. Instead of using numerical internet protocol addresses, which are the actual numerical addresses of internet-connected devices, people use domain names to navigate the internet more conveniently.
“Effective Date” – means the date where Order Confirmation (based on User’s Purchase Order) is issued to User.
“Enhancements of Core/ source code” or “Enhancements” means enhancements to the core/ source code which is done specific to customer needs/ requirements on core engine/ source code of the BaB Software. Any such enhancements shall remain IP of the Infibeam
“Extensions outside to the Core Platform” or “Extensions” means any code developed by Licensee or any third party, including without limitation, configuration, integrations, implementations, or localizations to the external/ integration layer of the core engine/ source code, baseline BaB Software product. Extensions outside to the Core Platform excludes any updates to the BaB Software. Further, Extensions outside to the Core Platform excludes Enhancements of Core/ source code.
“Governmental Authority” means any national, state, provincial, local or other government authority, statutory authority, government department, administrative authority, body or organization, agency, commission, board, tribunal or court or other Law or any recognized stock exchange of India or such other applicable country where the Party conducts business.
“Infibeam” or “Licensor” shall have the meaning ascribed to it in the title clause.
“Installations” means single cluster of applications, which are required to enable ‘a single marketplace’ irrespective of the environment. For avoidance of doubt, it is, hereby, clarified that ‘a single marketplace’ would mean an e-marketplace which is a virtual online market where buyers or sellers register and conduct commerce over the internet on a specific Domain Name.
“Intellectual Property” or “IP” with respect to a Person, means with respect to such Person all source codes, object codes, underlying structures, ideas, or algorithms, trade names, service marks, service names, trade dress, patents, copyrights, website platforms, logos, registered designs, domain names and utility models, inventions, confidential information, brand names, databases and database rights, know-how, and business/ corporate names, confidential information and any similar rights situate in any country and the benefit (subject to the burden) of any of the foregoing (in each case whether registered or unregistered and including applications for the grant of any of the foregoing and the right to apply for any of the foregoing in any part of the world) pertaining to its business/ the BaB Software.
“Law” means any statute, law, notification, by-law, rule and regulation, guideline, policy, written directive, ordinance, judgment of a court of law, guideline, policy, order or instruction having the force of law, enacted or issued by any Governmental Authority or any interpretation or adjudication having the force of law of any of the foregoing, by any concerned authority having jurisdiction over the matter in question.
“Open Source Software” shall have the meaning ascribed to it in Clause 10 hereof.
“Order Confirmation” means a written accept and confirmation of the User’s Purchase Order.
“Other Licensors” means licensors of all other open source softwares used as part of BuildaBazar framework, including such softwares which may become proprietary in future.
“Panel” shall have the meaning ascribed to it in Clause 11.9.2 hereof.
“Person” means any natural individual, sole proprietorship, partnership, limited liability partnership, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate and a natural person in his capacity as trustee, executor, administrator, or other legal representative or any other entity that may be treated as a person under applicable Law.
“Program Concepts” means the concepts, techniques, ideas, and know-how embodied and expressed in any computer programs or modules included in the BaB Software, including their structure, sequence, and organization.
“Proprietary Information” means: (a) with respect to Infibeam, the BaB Software and any complete or partial copies thereof, the Program Concepts, benchmark results; (b) Infibeam’s IP; and (c) information reasonably identifiable as the confidential and proprietary information of Infibeam.
“Purchase Order” means first official offer issued to Infibeam, indicating types, quantities, and agreed prices for products or services.
“Third-Party Software” shall have the meaning ascribed to it in Clause 10 hereof.
“Use” shall have the meaning ascribed to it in Clause 3.1.1 hereof.
“User” or “Licensee” shall have the meaning ascribed to it in the title clause.
In this Agreement, unless the context requires otherwise:
2.1.1 any word or phrase defined in the body of this Agreement as opposed to being defined in Clause 1 (Definitions), shall have the meaning ascribed to it in such definition throughout this Agreement. In addition, certain terms may be defined in the recitals or elsewhere in this Agreement and wherever such terms are used in this Agreement, they shall have the meaning so ascribed to them;
2.1.2 heading and bold typeface are only for convenience and shall be ignored for the purpose of interpretation;
2.1.3 a reference in this Agreement to a document (including this Agreement) is to the agreement or document as amended, supplemented, novated or replaced in the manner as set out in such agreement or document;
2.1.4 a clause or schedule or exhibit or appendices is a reference to a Clause in this Agreement;
2.1.5 the Recitals shall constitute an integral part of this Agreement;
2.1.6 words using the singular or plural also include the plural or singular, respectively;
2.1.7 words of any gender are deemed to include the other gender;
2.1.8 the terms “hereof”, “herein”, “hereby”, “hereto” and derivative or similar words refer to this entire Agreement or specified sections of this Agreement, as the case may be;
2.1.9 wherever the word “include”, “includes,” or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation”;
2.1.10 reference to any legislation or law or to any provision thereof shall include references to any such law as it may, after the date hereof, from time to time, be amended, supplemented or re-enacted, or to any legislation or Law that replaces it and any reference to a statutory provision shall include any subordinate legislation made from time to time under that provision, however, where Law is referred in relation to a particular event or date, it will be considered to be the Law that existed on that relevant date;
2.1.11 the words “directly or indirectly” mean directly or indirectly through one or more intermediary persons or through contractual or other legal arrangements, and “direct or indirect” shall have correlative meanings;
2.1.12 time is of the essence in the performance of the Parties’ respective obligations. If any time period specified herein is extended, such extended time shall also be of the essence;
2.1.13 any obligation on a Party to “procure” or “cause” the commission or omission of an act by another Person shall be deemed to be an obligation on such Party to ensure that the other Person commits or omits to procure such act or omission be done on an absolute basis, and without reference to any other standard of performance, such as on a ‘best efforts’ or ‘commercially reasonable efforts’ basis;
2.1.14 any reference to a “waiver” or “mutually agreed” or “mutual agreement” between the Parties shall mean a waiver in writing or a mutual agreement in writing, as the case may be. A reference to writing includes any method of representing or reproducing words in a visible form;
2.1.15 if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
2.1.16 unless explicitly provided for in this Agreement, any obligation (monetary or otherwise) of a Party under this Agreement will need to be fulfilled by such Party only, and no other Person shall be responsible for the performance or fulfillment of such obligation; and
2.1.17 the Parties acknowledge that they and their respective counsel have read and understood the terms of this Agreement and have participated equally in the negotiation and drafting of this Agreement. Accordingly, no court or arbitrator construing this Agreement shall construe it more stringently against one Party than against the other.
3.1 Grant of License
3.1.1 Subject to this Agreement and that the User has legally acquired the right to use the BaB Software, in terms hereof: (a) has paid the applicable price; and (b) is using an authorized copy of the BaB Software, Infibeam grants, during the Term and Licensee accepts, a non-exclusive, non-perpetual, non-transferable, limited license to the User, to install, run, use, operate and perform (“Use”) the BaB Software and Documentation, other Infibeam Proprietary Information provided by Infibeam to Licensee. This license does not permit Licensee to: (a) Use the BaB Software for a service bureau application; or (b) sublicense, or rent the BaB Software.
3.1.2 In terms of the Purchase Order, Licensee agrees to install the BaB Software only on 10 (ten) Installation(s). In the event that Licensee’s actual number of Installations exceeds 10 (ten) number as aforesaid, then Licensee shall be bound to immediately provide Infibeam with written notice in this regard, and pay Infibeam such fee as may be determined solely by Infibeam for such additional Installations.
3.1.3 The BaB Software must be promptly deleted in their entirety from the any and all the Installations no longer in use and from each back-up copy for any such Installation.
3.2 License Restrictions
3.2.1 The User shall not, and agrees not to or enable others to; translate, copy, decompile, reverse engineer, disassemble, isolate, separate, or otherwise attempt to derive source code and/ or any knowledge and/ or any Proprietary Information from any BaB Software or Documentation. The User agrees to Use the BaB Software in compliance with all applicable Laws, including local Laws of the country or region in which User resides or in which User downloads or Uses the BaB Software.
3.2.2 Restriction of Transfer: The User shall not rent, lease or sublicense the BaB Software either on a temporary or permanent basis, in any manner, whatsoever. If User transfers possession of any copy of the BaB Software licensed under this Agreement to another Person, then the license shall automatically terminate.
3.3 Audit Right
During Licensee’s normal business hours and at any time during Term, Infibeam, or its authorized representative or Other Licensors, shall have the right upon at least 10 (ten) days advance written notice to audit and inspect Licensee’s utilization of such items, in order to verify compliance with the terms of this Agreement.
3.4 Archival Copy; Restriction on Copies; Legends to be Reproduced
3.4.1 Licensee may make one copy of the BaB Software for archival purposes and such number of backup copies of the BaB Software as are consistent with Licensee’s normal periodic backup procedures. Licensee shall maintain a log of the number and location of all originals and copies of the BaB Software.
3.4.2 Licensee shall include, and shall under no circumstances remove, Infibeam’s and Other Licensors’ copyright, trademark, service mark, and other proprietary notices on any complete or partial copies of the BaB Software, Documentation, third-party database, or Infibeam Proprietary Information in the same form and location as the notice appears on the original work. The inclusion of a copyright notice on any portion of the BaB Software, Documentation, third-party database, or Infibeam Proprietary Information shall not cause or be construed to cause it to be a published work.
3.5 License for Third-Party Database
3.5.1 The BaB Software may require/ requires a third-party database which may be licensed through Infibeam or directly from a third-party database licensor approved by Infibeam. In the event Licensee obtains a license directly from a third-party database licensor, any restrictions imposed on Licensee directly by such third-party database licensor shall apply. Infibeam makes no representations or warranties as to such third-party database or its operation.
3.5.2 In relation to Other Licensors, the Licensee shall have to comply with their terms and conditions of licenses.
In order to update the BaB Software, a valid license to use the previous version of the BaB Software is required. If the license to a previous version of BaB Software is transferred to another person or entity, no updates will be made to it.
In the event the Licensee procures enterprise version of the BaB Software, then the Licensee shall procure annual maintenance contract (AMC) with Licensor with such terms and conditions and at such fee/ consideration as may be determined by Licensor. In this regard, the Licensee acknowledges and covenants that the Licensor shall be an exclusive AMC for the Licensee.
The licensed BaB Software in machine-readable format, and the Documentation, shall be provided in an archival format which will be shared by Infibeam with Licensee anytime after the Licensee’s acceptance and performance of the terms and conditions of this Agreement (“Delivery”).
This Agreement and the license granted hereunder shall become effective as of the Effective Date first and shall continue in effect thereafter unless terminated under Clause 5.2 (Termination).
5.2.1 Infibeam shall be entitled to terminate this Agreement and the license granted hereunder immediately:
(a) if User is in material breach of any provision of this Agreement, including Clause 3 (License Grant), 6 (Proprietary Rights);
(b) if the Licensee fails to perform any of its representation, warranties, undertaking, covenants, obligations under and in terms of this Agreement;
(c) if Licensee files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors;
(d) if the Licensee in the event of (or likelihood of) infringes/ violates Infibeam’s IP and/ or Infibeam’s Proprietary Information determined in the sole discretion of Infibeam;
(e) if the Licensee has exceeded cap on any damages in this Agreement or Other Agreements;
(f) if Licensee has failed to comply with or is in breach or contravention of applicable Laws.
5.2.2 This Agreement shall automatically terminate: (a) when a new version of this Agreement has been made available at https://www.buildabazaar.ooo/. The User shall be bound by all rights and obligations of the newest agreement, or (b) when the license has expired Infibeam reserves the right to change the terms and conditions of this Agreement at any time without prior notice. In the event any changes are made, the revised version shall be posted on the above-mentioned website.
5.3 Effect of Termination
Upon any termination of this Agreement: Clauses 6 (Proprietary Rights), 7.4, 8 (Indemnification), 9 (Limitations of Liability), 10 (Arbitration), and 12.6 (Governing Law) shall survive such termination; Licensee’s rights under Clause 2 (License Grant) shall immediately cease; and Infibeam and Licensee each shall promptly perform its obligations under Clause 5.4 (Duties Upon Termination). In the event of any termination hereunder, except as otherwise may be provided for pursuant to Clause 8.3 (Indemnification of Licensee) or Clause 9.1 (Licensee’s Remedies) (c), Licensee shall not be entitled to any refund of any payments made by Licensee.
5.4 Duties Upon Termination
Upon any termination hereunder: (a) User’s rights will cease and all rights granted shall automatically revert to Infibeam; (b) Licensee shall immediately cease Use of any and all Infibeam Proprietary Information, BaB Software and Documentation and shall irretrievably delete and/ or remove such items from all computer hardware and storage media; (c) Licensee shall forthwith deliver to Infibeam at Licensee’s expense (adequately packaged and insured for safe delivery) or destroy all copies of the Infibeam Proprietary Information, BaB Software and Documentation in every form; (d) User shall pay all amounts due; and (e) User shall take such acts and execute all documents reasonably requested to register or effect the termination; (f) an officer of Licensee’s organization shall certify in writing to Infibeam that it has performed the foregoing.
6.1 Infibeam Proprietary Information
6.1.1 Licensee acknowledges that ownership of and title in and to all IP rights, including patent, trademark, copyright, and trade secret rights, in the Infibeam Proprietary Information are and shall remain in Infibeam and its Other Licensors. Licensee acquires only the right to Use the Infibeam Proprietary Information and does not acquire any ownership rights or title in or to the Infibeam Proprietary Information and that of Infibeam’s licensors and/ or Other Licensors.
6.1.2 Licensee shall not copy, translate, disassemble, or decompile, nor create or attempt to create, by reverse engineering or otherwise, the source code, object code, underlying structure, ideas, or algorithms of/ included in the BaB Software and/ or the Documentation; and/ or modify, translate or create derivative works based on the BaB Software and/ or the Documentation; and/ or copy, distribute, pledge, assign or otherwise transfer or encumber rights to BaB Software and/ or the Documentation; in any manner, whatsoever. ln the event source code is provided to Licensee, Infibeam, in its sole discretion, reserves the right to delete, or to require the deletion of, such source code and all copies thereof in Licensee’s possession or control.
6.1.3 Subject to Section 6.3.2, all Enhancements and Extensions to the Software and Documentation shall be considered part of the Software and Documentation for purposes of this Clause 6.
6.2 Protection of Proprietary Information
In order to protect the rights of Infibeam and Other Licensors in their respective Proprietary Information, Licensee agree to take all reasonable steps and the same protective precautions to protect Infibeam’s Proprietary Information from disclosure to third parties as with its own proprietary and confidential information. Without Infibeam’s prior written consent, User shall not disclose, provide, or make available any of Infibeam’s Proprietary Information in any form to any other Person. Upon such consent and prior to disclosing any Infibeam Proprietary Information to any third party, it will obtain from that third party a written acknowledgment that such third party shall be bound by the same terms as specified in this Clause 6 with respect to Infibeam’s Proprietary Information and naming Infibeam as a third party beneficiary.
6.3 Enhancements and Extensions
6.3.1 Infibeam does not permit Enhancement to Core/ source code by Licensee, and any acts of commission/ omission in this regard shall be treated as breach/violation of this Agreement. However, upon written request of the Licensee, Infibeam may undertake Enhancements as Infibeam may deem fit and proper for such additional fee as may be decided mutually, or under any contractual obligation (as the case may be). Any Enhancement at any point in time shall remain IP of Infibeam. The terms and conditions for Use of Enhancements shall be governed by the same terms and conditions which governs the license which has been so enhanced. It is hereby clarified that any Enhancement by any Person (including Licensee) other than Infibeam, shall be treated as a violation/ infringement to IP of Infibeam and breach/ Event of Default of this Agreement.
6.3.2 Licensee may make Extensions outside to the Core Platform to the BaB Software, excluding softwares of Other Licensors, for Use under the terms set forth in this Clause. The IP in such Extensions shall be owned by Licensee.
6.3.3 The Parties hereto agree that the granting of any rights, title, or interest to Licensee in any Enhancements or Extensions shall not be construed by the Parties, any court of law or equity, or any arbitration panel to mean that Infibeam has granted or given up any rights, title, or interest in or to the Infibeam Proprietary Information.
6.3.4 Licensee agrees not to take any action that would limit Infibeam’s independent development, sale, assignment, licensing or use of its own Enhancements or Extensions thereto.
THE USER ACKNOWLEDGES AND AGREES THAT THE BAB SOFTWARE IS PROVIDED AS IS, AND THE USE OF OR RELIANCE UPON THE BAB SOFTWARE AND ANY THIRD-PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT THE USERS SOLE RISK AND DISCRETION. INFIBEAM HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE SOFTWARE AND THIRD-PARTY CONTENT AND SERVICES, WHETHER EXPRESSED, IMPLIED OR STATUTORY AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
8.1 No Representation Regarding Combination Use
Infibeam and Other Licensors make no representation with respect to the possibility of infringement by Combination Use of the BaB Software. The Parties agree that Infibeam has no duty to investigate nor to warn Licensee of any such possibility. “Combination Use” means Use of the BaB Software in conjunction with any of the following, unless such Use is prescribed in the Documentation: (a) any software other than the BaB Software; (b) any apparatus other than an Installation; and/ or (c) any activities of Licensee not licensed under this Agreement.
8.2 Indemnification of Licensee
8.2.1 Infibeam shall indemnify, and defend Licensee from and against all claims, liabilities, and costs, reasonably incurred in the defence of any claim brought against Licensee by third parties alleging that Licensee’s Use of the BaB Software and Documentation infringes or misappropriates: (a) a copyright; or (b) trade secret rights, provided that, Licensee promptly notifies Infibeam in writing of any such claim and Infibeam is permitted to control fully the defence and any settlement of such claim. Licensee shall cooperate fully in the defence of such claim and may appear, at its own expense, through counsel reasonably acceptable to Infibeam. Infibeam may, in its sole discretion, settle any such claim on a basis requiring Infibeam to substitute for the BaB Software and Documentation alternative equivalent non-infringing programs and supporting documentation.
8.2.2 Notwithstanding item 9.3 (Exclusion of Damages), the maximum aggregate liability of Infibeam under the indemnity provided in Clause 8.2.1 above shall be a sum equal to the license fees, the under this Agreement / Purchase Order, received by Infibeam from User within the immediately preceding six months from the date of the claim of infringement arises.
8.3 Indemnification of Infibeam
Licensee shall indemnify, defend and hold Infibeam, and Other Licensors, and their respective officers, directors, employees of each, harmless at all times against all claims, liabilities, cost, expenses, including reasonable legal fees, reasonably incurred in the defense of any claim, arising out of any third party claims, and/ or Licensee’s unauthorized Use of the BaB Software, Documentation, third-party database, items of Other Licensors, and other Infibeam Proprietary Information, licensed under this Agreement, and/ or breach/ violation/ default of any of the terms and conditions of this Agreement and/ or the Purchase Order.
8.4 Infibeam’s Right to Commence Infringement Actions
Infibeam alone shall be responsible for taking such actions which it determines are reasonably necessary or desirable in its sole discretion in connection with any infringement or alleged infringement by User and/ or any third party of any portion of the BaB Software and Documentation. Licensee shall not undertake any action in response to any infringement or alleged infringement of the BaB Software and Documentation without the prior written consent of Infibeam. Licensee agrees to cooperate with and assist Infibeam by taking whatever action which Infibeam solely determines to be reasonably necessary or desirable. User agrees to reimburse, within a commercially reasonable period of time, Infibeam for reasonable legal fees and other expenses incurred in connection with any such claim, suit, damage, or loss.
8.5 Infibeam’s Duty to Indemnify Licensee
THE PROVISIONS OF THIS CLAUSE 8 STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF INFIBEAM AND ITS LICENSORS TO LICENSEE, AND IS LICENSEE’S SOLE REMEDY WITH RESPECT TO THE INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
9.1 Infibeam Not Responsible
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE BAB SOFTWARE IS LICENSED “AS-IS” AND “AS AVAILABLE”, WITH ALL FAULTS. Infibeam shall not be responsible under this Agreement, in any manner, whatsoever, including: (a) any alteration of the BaB Software to fit the particular requirements of Licensee; or (b) the correction of any defects resulting from Enhancements or Extensions or as a result of misuse of the BaB Software by Licensee; or (c) preparation or conversion of data into the form required for use with the BaB Software or (d) ensuring the security of Licensee’s networked installation of the BaB Software. THE SOFTWARE IS NOT SPECIFICALLY DEVELOPED OR LICENSED HEREUNDER FOR USE IN ANY DIRECT AND ACTIVE OPERATIONS OF ANY EQUIPMENT IN ANY NUCLEAR, AVIATION, MASS TRANSIT, OR MEDICAL APPLICATIONS, OR IN ANY OTHER INHERENTLY DANGEROUS APPLICATIONS. THE PARTIES HERETO AGREE THAT USE OF THE SOFTWARE AND THIRD-PARTY SOFTWARE FOR FINANCIAL APPLICATION PURPOSES OR SUCH OTHER ADMINISTRATIVE PURPOSES SHALL NOT BE DEEMED INHERENTLY DANGEROUS APPLICATIONS IF SUCH USE DOES NOT AFFECT THE OPERATIONS OR MAINTENANCE OF SUCH EQUIPMENT. INFIBEAM AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM SUCH INHERENTLY DANGEROUS USE OF THE SOFTWARE AND/OR THIRD-PARTY SOFTWARE LICENSED HEREUNDER.
9.2 Exclusion of Damages
IN NO EVENT SHALL INFIBEAM BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, OR EXEMPLARY OR PUNITIVE DAMAGES. The provisions of this Agreement allocate the risks between Infibeam and Licensee, the license fees reflect this allocation of risk and the limitations of liability herein.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. Accordingly, some of the above limitations and disclaimers may not apply to User. To the extent that Infibeam may not, as a matter of applicable Law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Infibeam’s liability will be the minimum permitted under such applicable Law. Infibeam is not responsible or liable for the deletion of or failure to store or process any information or other content provided by User or transmitted in the course of using the BaB Software. User is solely responsible for securing and backing up such submissions.
Certain software included in, distributed with or downloaded in connection with the BaB Software may include third-party proprietary software products that are subject to separate license terms (“Third-Party Software”). All such Third-Party Software may include software or software components that are derived, in whole or in part, from software that is distributed as free software, open source software or under similar licensing or distribution models (“Open Source Software”) User’s use of Open Source Software is subject in all cases to the applicable licenses from the Third-Party Software provider, which shall take precedence over the rights and restrictions granted in this Agreement solely with respect to such Third-Party Software. User’s shall comply with the terms of all applicable Third-Party Software and Open Source Software licenses, if any. Copyrights to Open Source Software are held by their respective copyright holders indicated in the copyright notices in the corresponding source files.
FOR THE AVOIDANCE OF DOUBT, INFIBEAM PROVIDES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO SUCH THIRD-PARTY SOFTWARE, INCLUDING WITH RESPECT TO FUNCTIONALITY OF SUCH THIRD-PARTY SOFTWARE. Infibeam does not provide any warranty, maintenance, technical or other support for any Third-Party Software. Accordingly, Infibeam is not responsible for User’s use of any Third-Party Software or any personal injury, death, property damage (including, without limitation, to End-User’s home), or other harm or losses arising from or relating to User’s use of any Third-Party Software.
11.1 Rights to Injunctive Relief
Both Parties acknowledge that remedies at law may be inadequate to provide Infibeam with full compensation in the event of Licensee’s breach of material terms and conditions (as determined by Infibeam), including Clauses 2 (License Grant), 6 (Proprietary Rights), or 10.4 (Assignment), and that Infibeam shall therefore be entitled to seek injunctive relief in the event of any such breach.
It is the intent of the Parties that in case any one or more of the provisions contained to this Agreement shall be held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein.
11.3 No Waiver
Failure or neglect by the Infibeam to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of Infibeam ‘s rights hereunder nor in any way affect the validity of the whole or any part of this license nor prejudice Infibeam ‘s rights to take subsequent action.
Licensee cannot, assign, delegate, sublicense, pledge, or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement, or the Infibeam’s Proprietary Information, to any party.
Save as otherwise provided in this Agreement, no amendment to this Agreement shall be valid or binding unless set forth in writing and duly executed by each of the Parties to this Agreement.
11.6 No Partnership
Nothing contained in this Agreement shall constitute or be deemed to constitute a partnership between the Parties, and no Party shall hold himself out as an agent for the other Party, except with the express prior written consent of the other Party.
11.7 Further Assurances
Each Party shall promptly and duly execute and deliver all such further instruments and documents, and do or procure to be done all such acts or things, as may be required by Law or as may be necessary or reasonably required by the other Party to implement and give effect to the terms of this Agreement.
11.8 Costs and Expenses
Other than as specifically contemplated under this Agreement or unless otherwise agreed between the Parties in writing, the costs and expenses in connection with this Agreement shall be borne by the Licensee.
11.9 Governing Law, Jurisdiction and Dispute Resolution
11.9.1 Governing Law & Jurisdiction: This Agreement shall in all respects be governed and interpreted by and construed in accordance with the laws of India, and the courts at Gandhinagar, Gujarat shall have exclusive jurisdiction.
11.9.2 Dispute Resolution:
(a) This Agreement shall be governed by and construed in accordance with the laws of India without giving effect to conflict of law rules. In the case of dispute arising out of or in relation to or in connection with this Agreement between the Parties, any Party may submit the dispute for arbitration under the Arbitration Act.
(b) The arbitration shall be conducted in India in accordance with the Arbitration Act. The arbitration shall be presided upon by a panel of three arbitrators (“Panel”) wherein each Party shall appoint one arbitrator within 15 (fifteen) days of receipt by the respondent Party of the notice of arbitration from the claimant Party. The third arbitrator shall be appointed within 15 (fifteen) days of the appointment of the second arbitrator by the arbitrators appointed by the Parties and shall serve as chairman of the Panel. Failing the appointment by the respondent Party of its arbitrator or of the third arbitrator by the two appointed arbitrators, either Party may apply to the Hon’ble High Court of Gujarat for appointment of any unappointed arbitrator.
(c) The seat and venue of the arbitration proceedings shall be Gandhinagar, Gujarat and the language of the arbitration proceedings and that of all documents and communications between the Parties, and arbitration award shall be English language. The decision of the arbitration panel shall be final and binding upon both Parties. All arbitration awards shall be in writing and shall state the reasons for the award.
11.10 Force Majeure
Any delay or non-performance of any provision of this Agreement (other than for the payment of amounts due hereunder) caused by conditions, including an act of God, war, civil commotion, fire, explosion, epidemic, pandemic or other similar event beyond the reasonable control, and without the fault or negligence of the nonperforming party, shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
11.11 Entire Agreement
This Agreement constitutes the complete and exclusive agreement between Infibeam and the User with respect to the subject matter hereof and supersedes all proposals, representations, understandings and prior agreements, whether oral or written, and all other related communication between the Parties. All rights not explicitly granted in this Agreement are reserved.