NOTICE TO END USER: THIS IS A LEGAL AND BINDING AGREEMENT. PLEASE READ IT CAREFULLY.
Elixir Softech Private Limited (as defined below, referred as ‘ElixirST’) and the Company/Business to which the End User belongs (Company) agree to the terms of this Agreement (as defined below).
By downloading, installing, copying, accessing or using this software, Company agrees to this Agreement. If Company is accepting this Agreement on behalf of another person or other legal entity, Company represents and warrants that Company has full authority to bind that person or legal entity to this Agreement. Company must ensure that End Users (as defined below) comply with this Agreement and is responsible for End Users’ compliance with or breach of this Agreement.
If Company does not agree to this Agreement, Company must:
- not download, install, copy, access or use the Software; and
- promptly return the Software and proof of entitlement to the party from whom Company acquired the Software.
Capitalized terms used in this Agreement have the meaning assigned to them in Clause 1 or elsewhere in this Agreement. The interpretation clause 1.2 sets out the rules of interpretation for this Agreement.
1. DEFINITIONS AND INTERPRETATION
- 1.1 In this Agreement:
- Authorized Partner means any of ElixirST’s Affiliates, Distributors, Resellers or other business partners.
- Affiliates, with respect to Company, mean any entity that, directly or indirectly, controls, is controlled by, or is under direct or indirect common control with such entity or one or more of the other Affiliates of that entity (or a combination thereof).
For the purpose of this definition, an entity controls another entity if and as long as the first entity:
- owns, beneficially or of record, more than fifty percent (50%) of the voting securities of the other entity;
- can elect a majority of the directors of the other entity; or
- provides day to day management of such entity under contract or as managing general partner.
Affiliate, with respect to ElixirST, means any direct or indirect subsidiary of ElixirST,
- Business Day means any day other than a Saturday, Sunday, statutory or public holiday in the place where the ElixirST Products are provided.
- Cloud Services means the cloud services that ElixirST provides to Company.
- Confidential Information means any information (regardless of the form of disclosure or the medium used to store or represent it) of a party (Disclosing Party), including trade secrets and technical, financial or business information, data, ideas, concepts or know-how, that:
- Is designated as “confidential” or by similar words by the Disclosing Party at the time of disclosure and, if oral or visual, is confirmed as confidential by the Disclosing Party in writing within fifteen (15) days of disclosure; or
- The receiving party (Recipient) should reasonably have considered to be confidential under the circumstances surrounding disclosure.
However, Confidential Information does not include any information that:
- written records demonstrate was lawfully acquired by or previously known to the Recipient independent of the Disclosing Party;
- is received from a third party without restrictions on its use or disclosure and not by inadvertence or mistake;
- is or has become disseminated to the public through no fault of the Recipient and without violation of the terms of this Agreement or other obligation to maintain confidentiality; or
- is created independently by the Recipient without breach of this Agreement, including any obligation of confidentiality owed to the Disclosing Party.
- Consequential Damages means indirect, special, incidental, punitive, exemplary, consequential or extra-contractual damages of any kind, including third-party claims, loss of profits, loss of goodwill, loss of personnel salaries, computer or system failure or malfunction, costs of obtaining substitute cloud services, work stoppage, denial of access or downtime, system or service disruption or interruption, or any lost, damaged, or stolen data, information or systems as well as the costs of restoring any lost, damaged, or stolen data, information or systems.
- Distributor means any independent entity authorized by ElixirST to distribute ElixirST Products to Resellers or End Users.
- Derivative Work means a work that is based on one or more preexisting works (such as a revision, translation, dramatization, motion picture version, abridgment, condensation, enhancement, modification, or any other form in which preexisting work may be recast, transformed or adapted) which, if created without the authorization of the copyright owner of the preexisting work, would constitute copyright infringement.
- Documentation means any explanatory materials, such as user manuals, training materials, product descriptions, or any other literature regarding the implementation and use of ElixirST Products that is provided by ElixirST with the ElixirST Products. Documentation is provided in printed, electronic or online form.
- End User means the individual or entity that is licensed or authorized to use the Software under this Agreement.
- Force Majeure Event means any event beyond a party’s reasonable control that, by its nature, could not have been foreseen or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), acts of God, war, riot, embargoes, acts of civil or military authorities, acts of terrorism or sabotage, shortage of supply or delay in delivery by ElixirST’s vendors, fire, flood, earthquake, accident, radiation, inability to secure transportation, failure of communications or energy sources, malicious damage, breakdown of plant or machinery, or default of suppliers or sub-contractors.
- Intellectual Property Rights means all intellectual property or other proprietary rights throughout the world, whether existing under statute, at common law or in equity, now existing or created in the future, including:
- copyright, trademark and patent rights, trade secrets, moral rights, right of publicity, authors’ rights;
- any right to apply for any of the rights referred to in paragraph (i); and
- all renewals, extensions, continuations, divisions, restorations or reissues of the rights, or applications referred to in paragraphs (i) and(ii).
- ElixirST means: Elixir Softech Pvt Ltd., incorporated under the (Indian) Companies Act, 2013 having its Corporate Office at 4th Floor Tower-C, Galaxy Business Park, Sector-62, Noida, U.P. - 201301.
- ElixirST Products means any of ElixirST’s Software or Support.
- Personal Data or Personal Information means any information relating to an identified or identifiable individual or is otherwise defined as ‘Personal Data’ under the General Data Protection Regulation or other applicable data protection laws.
- Representatives means a party’s Affiliates, permitted resellers, subcontractors, or authorized agents
- Reseller means a company that has been authorized by ElixirST and has agreed to market and resell ElixirST Products.
- Software means any software program owned or licensed by ElixirST, as the context require, in object code format licensed from ElixirST and purchased from ElixirST or its Authorized Partners.
Software may also include additional features or functionality that can be accessed with either a subscription or Support agreement to create Cloud Services as required by the specific offering and subject to Cloud Services Agreement.
- Support or Technical Support means the services that ElixirST (or an Authorized Partner) provides for the support and maintenance of the ElixirST Products, as specified in the Technical Support and Maintenance Terms and Conditions.
- Service Subscription Period means the period for which the End User is entitled to Support, as the service is being actively subscribed.
- Updates means any updates to the content of the Software or Cloud Services, and includes all binaries, signature sets, policy updates, database updates for the Software or Cloud Services, and updates to the related Documentation that are made generally available to End Users after the date of purchase of the Software or of subscription of the Cloud Services as a part of purchased Support.
- Upgrade means any and all improvements in the Software or Cloud Services that are generally made available to End Users as a part of purchased Support.
- 1.2 In this Agreement, unless a contrary intention appears:
- a reference to a party includes its executors, administrators, successors and permitted assigns;
- headings are for ease of reference only and do not affect the interpretation or meaning of this Agreement;
- the singular includes the plural and vice versa and words importing a gender include other genders;
- other grammatical forms or parts of speech of defined words or phrases have corresponding meanings;
- a reference to a clause, paragraph, exhibit, schedule or other annexure is a reference to a clause or paragraph of or exhibit, schedule or annexure to this Agreement;
- the words “include”, "including", “such as” and similar expressions are not used as, nor are intended to be, interpreted as words of limitation; and
- the meaning of this Agreement will be interpreted based on its entirety and not just on isolated parts.
2. LICENSE GRANT; PROPRIETARY RIGHTS
- 2.1 Right to use the Software: Subject to the terms and conditions of this Agreement, Elixir grants Company a non-exclusive, non-transferable right to use this Software solely for Company’s own internal business operations. In this Agreement, to use the Software includes to download, install and access the Software. Company is not granted rights to Updates and Upgrades unless Company has purchased Support (or a service subscription granting rights to Updates and Upgrades).
3. COPY AND USE TERMS
- 3.1 Product Entitlement: The use of the Software depends on the licenses purchased (e.g. Number of Cameras and Modules on each Camera) and is subject to the Product Entitlement definitions.
- 3.2 Multiple Cameras/Modules: The Software will support multiple cameras and modules depending on how many were taken during the subscription.
- 3.3 Term: The license is effective for the limited time basis the subscription opted by the Company during sign-up and any renewals there-after.
- 3.4 Copies: Company is NOT allowed to make any copies of this software. In case of computer crash and if re-installation is required then the same can be done by using the original email which was sent at the time of subscription sign-up.
- 3.5 Affiliates, Managing Parties: Company may permit use of the Software in accordance with this Agreement:
- by an Affiliate;
- by a third party with which Company enters into a contract to manage Company’s information technology/ CCTV Camera resources (Managing Party) if:
- the Managing Party only uses the Software for Company’s internal operations and not for the benefit of another third party or itself;
- the Managing Party agrees to comply with the terms and conditions of this Agreement; and
- Company provides ElixirST with written notice that a Managing Party will be using the Software on Company’s behalf. Company is responsible and fully liable for each Affiliates’ and Managing Party’s compliance with or breach of this Agreement.
- 3.6 General restrictions: Company may not, and may not cause or allow any third party to:
- decompile, disassemble or reverse-engineer the Software, or create or recreate the source code for the Software;
- remove, erase, obscure or tamper with any copyright or any other product identification or proprietary rights notices, seal or instructional label printed or stamped on, affixed to, or encoded or recorded in or on any Software or Documentation; or fail to preserve all copyright and other proprietary notices in all copies Company makes of the Software and Documentation;
- lease, lend or use the Software for timesharing or service bureau purposes; sell, market, license, sublicense, distribute or otherwise grant to any person or entity any right to use the Software except to the extent expressly permitted in this Agreement; or use the Software to provide, alone or in combination with any other product or service, any product or service to any person or entity, whether on a fee basis or otherwise;
- modify, adapt, tamper with, translate or create Derivative Works of the Software or the Documentation; combine or merge any part of the Software or Documentation with or into any other software or documentation; or refer to or otherwise use the Software as part of any effort to develop software (including any routine, script, code, or program) having any functional attributes, visual expressions or other features similar to those of the Software to compete with ElixirST;
- except with ElixirST’s prior written permission, publish any performance or benchmark tests or analysis relating to the Software;
- attempt to do any of activities in sub-clauses (a) to (e); or
- run or operate the Software in a cloud, Internet-based computing or similar on-demand computing environment.
4. TECHNICAL SUPPORT AND MAINTENANCE
The Technical Support and Maintenance Terms and Conditions, which are incorporated by reference, apply for the period when the subscription is active. After the end of the service subscription period, Company has no further rights to receive any Support including Upgrades, Updates and telephone/ email Support. ElixirST may change the Support offered at any time, effective as of the commencement of any service subscription renewal period.
- 5.1 Without prejudice to Company’s payment obligations, Company may terminate Company’s license at any time by uninstalling the Software.
- 5.1 ElixirST may terminate Company’s license if Company materially breaches this Agreement and Company fails to cure the breach within SEVEN (7) days of receiving ElixirST’s notice of the breach. Upon termination, Company must promptly return, destroy or delete permanently all copies of the Software and Documentation.
6. PAYMENTS; TAXES; AUDIT
- 6.1 Payments: Unless Company is purchasing the ElixirST Products through an Authorized Partner, in which case payment obligations will be exclusively between the Authorized Partner and Company, Company will pay ElixirST the fees for the ElixirST Product in advance before the use of the software. All payment obligations are non-cancelable and non-refundable. If Company considers that the amount being charged is In-correct, then they should not subscribe to this service.
- 6.2 Taxes: Each party is responsible for its own income taxes or other applicable taxes. Company agrees to pay any applicable taxes in respect of the rights granted and fees paid in connection with this Agreement.
- 7.1 Each party acknowledges that it may have access to Confidential Information of the other party in connection with this Agreement, and that each party’s Confidential Information is of substantial value to the Disclosing Party, which could be impaired if it were improperly disclosed to third parties or used in violation of this Agreement.
- 7.2 Each Recipient of Confidential Information under this Agreement must:
- keep the Disclosing Party’s Confidential Information confidential and protect it at least to the same extent it protects its own Confidential Information and to the same extent that a reasonable person would protect such Confidential Information;
- not use the Disclosing Party’s Confidential Information in any way for its own account or the account of any third party except to perform its duties, exercise its rights or is otherwise authorized under this Agreement; and
- not disclose the Disclosing Party’s Confidential Information except to perform its duties or exercise its rights under this Agreement or as otherwise authorized under this Agreement, provided that:
- any disclosure made to the Recipient’s employees, contractors or agents is on a need-to-know basis; and
- the Recipient’s employees, contractors or agents in receipt of the Confidential Information are under an obligation of confidentiality no less stringent than that set forth in this clause.
- 7.3 Notwithstanding the restrictions in Clause 7.2, if the Recipient is required to disclose any of the Disclosing Party’s Confidential Information by law, such as in response to a court order or requirement of any regulator, court, arbitral, administrative, or legislative body, the Recipient must:
- where reasonably possible and permitted, immediately provide written notice to the Disclosing Party of the required disclosure to give the Disclosing Party an opportunity to move for a protective order or otherwise prevent the disclosure;
- disclose only the minimum amount of Confidential Information required to satisfy the legal obligation; and
- assert and take proper steps with the body requiring disclosure to maintain the confidentiality of the Confidential Information to be disclosed.
- 7.4 Company will immediately, and at least within seventy-two (72) hours, notify ElixirST if Confidential Information of ElixirST is used or disclosed in breach of this Agreement. As monetary damages may not be sufficient relief if anyone violates or threaten to violate the terms of this clause, ElixirST is immediately entitled to enforce its rights by specific performance or injunction proceedings, in addition to any other rights or remedies it may have.
- 7.5 Upon the Disclosing Party’s request and upon termination of this Agreement (unless agreed otherwise by the parties at the time), each party will return, destroy or delete permanently (at the Disclosing Party’s election) the other party’s Confidential Information.
- 7.6 On termination of this Agreement, the Recipient must continue to keep the Disclosing Party’s Confidential Information confidential for five (5) years in accordance with this clause.
8. INTELLECTUAL PROPERTY RIGHTS
- 8.1 The Software, including its object code and source code, whether or not provided to Company, is Confidential Information of ElixirST. ElixirST (or its licensors) owns exclusively and reserves all rights, title and interest in and to the ElixirST Products and Documentation, including all Intellectual Property Rights as well as any Derivative Works. Company may not exercise any right, title and interest in and to the ElixirST Products, Documentation or any related Intellectual Property Rights, except for the limited usage rights granted to Company in this Agreement. Company agrees, on behalf of itself and its Affiliates, that Company and its Affiliates will take no action inconsistent with ElixirST’s Intellectual Property Rights.
- 8.2 This Agreement is not an agreement of sale, and does not transfer any title, Intellectual Property Rights or ownership rights to the ElixirST Products or Documentation to Company. Company acknowledges and agrees that the ElixirST Products, Documentation and all ideas, methods, algorithms, formulae, processes and concepts used in developing or incorporated into the ElixirST Products or Documentation, all future Updates and Upgrades, and all other improvements, revisions, corrections, bug-fixes, hot-fixes, patches, modifications, enhancements, releases, DATs, signature sets, upgrades, and policy and database updates and other updates in, of, or to the ElixirST Products or Documentation, as applicable, all Derivative Works based on any of the foregoing, and all copies of the foregoing are trade secrets and proprietary property of ElixirST, having great commercial value to ElixirST.
9. LIMITED WARRANTY AND DISCLAIMER
- 9.1 Limited warranty: ElixirST warrants that, during the active service subscription period (Warranty Period), the Software licensed under this Agreement will perform substantially in accordance with the Data completeness metric (Limited Warranty). Company’s exclusive remedy and ElixirST’s entire obligation and liability for any breach of the Limited Warranty is to repair or replace the Software. The Limited Warranty is conditioned upon Company providing ElixirST prompt written notice of the Software’s failure to perform substantially in the Data completeness metric.
- 9.2 Exclusion of warranty: The Limited Warranty will not apply if:
- the Software is not used in accordance with this Agreement or the Operating Environment as required by ElixirST;
- the Software or any part of the Software has been modified by any entity other than ElixirST; or
- a malfunction in the Software has been caused by any equipment or software not supplied by ElixirST.
- 9.3 Disclaimer of warranties: EXCEPT FOR THE LIMITED WARRANTY, THE SOFTWARE IS PROVIDED “AS IS”. TO THE EXTENT PERMITTED BY LAW, ElixirST MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE SOFTWARE AND SUPPORT, AND ElixirST DISCLAIMS ALL OTHER OBLIGATIONS AND LIABILITIES, OR EXPRESS OR IMPLIED WARRANTIES REGARDING THE SOFTWARE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR SYSTEMS INTEGRATION. ElixirST MAKES NO WARRANTY, REPRESENTATION OR GUARANTEE AS TO THE SOFTWARE’S USE OR PERFORMANCE, OR THAT THE OPERATION OF THE SOFTWARE WILL BE FAIL- SAFE, UNINTERRUPTED OR FREE FROM ERRORS OR DEFECTS; OR THAT THE SOFTWARE WILL IDENTIFY ALL ASPECTS OF VIOLATIONS, EVENTS AND/OR COMPLIANCE.
- 9.4 High Risk Systems terms: THE SOFTWARE MAY FAIL AND IS NOT DESIGNED, DEVELOPED, TESTED, OR INTENDED TO BE RELIABLE IN THE CONTEXT OF HIGH-RISK SYSTEMS. ElixirST HAS NO RESPONSIBILITY FOR, AND COMPANY WILL INDEMNIFY AND HOLD HARMLESS ElixirST FROM, ALL CLAIMS, SUITS, DEMANDS AND PROCEEDINGS ALLEGING, CLAIMING, SEEKING, OR ASSERTING ANY LIABILITY, LOSS, OBLIGATION, RISK, COST, DAMAGE, AWARD, PENALTY, SETTLEMENT, JUDGMENT, FINE OR EXPENSES (INCLUDING ATTORNEY FEES) ARISING FROM OR IN CONNECTION WITH COMPANY’S USE OF THE SOFTWARE ON OR IN A HIGH RISK SYSTEM, INCLUDING THOSE THAT COULD HAVE BEEN PREVENTED BY DEPLOYMENT OF FAIL- SAFE OR FAULT-TOLERANT FEATURES TO THE HIGH RISK SYSTEM, OR ARE BASED ON A CLAIM, ALLEGATION, OR ASSERTION THAT THE FUNCTIONING OF HIGH RISK SYSTEM DEPENDS OR DEPENDED ON THE FUNCTIONING OF THE SOFTWARE, OR THAT THE FAILURE OF THE SOFTWARE CAUSED A HIGH RISK SYSTEM TOFAIL.
- 9.5 Third parties: The ElixirST Products may contain independent third-party products and rely on them to perform certain functionality, including object identification, object definitions and algorithms. ElixirST makes no warranty as to the operation of any third-party products or the accuracy of any third-party information.
10. LIMITATION OF LIABILITY
- ElixirST’s ENTIRE AGGREGATE LIABILITY TO THE OTHER PARTY FOR CLAIMS UNDER OR RELATED TO THE SUBJECT-MATTER OF THIS AGREEMENT WILL NOT EXCEED THE TOTAL PAYMENTS PAID OR PAYABLE BY COMPANY TO ElixirST UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRIOR TO THE CLAIM. NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE DAMAGES WERE FORESEEABLE OR A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. THIS LIMITATION OF LIABILITY APPLIES WHETHER SUCH CLAIMS ARISE UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), EQUITY, STATUTE OR OTHERWISE. NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW.
- 11.1 Company indemnification obligations: Company will unconditionally indemnify and defend ElixirST, its Affiliates, and their officers, directors, employees, contractors and agents (each an ElixirST Indemnified Party) against any claims, liabilities and expenses (including court costs and reasonable attorney fees) that a ElixirST Indemnified Party incurs as a result of or in connection with:
- any third-party claims arising from:
- Company‘s failure to obtain any consent, authorization or license required for ElixirST’s use of data, software, materials, systems, networks or other technology provided by Company under this Agreement;
- Company's use of the Software in a manner not expressly permitted by this Agreement;
- ElixirST’s compliance with any technology, designs, instructions or requirements provided by Company or a third party on Company’s behalf;
- Any claims, costs, damages and liabilities whatsoever asserted by any Company Representative; or
- Any violation by Company of applicable laws; and
- any reasonable costs and attorneys’ fees required for ElixirST to respond to a summons, court order or other official government inquiry regarding Company’s use of the Software.
- 11.2 ElixirST indemnification obligations
- ElixirST will indemnify Company and, at ElixirST’s election, defend Company against a third-party claim asserted against Company in a suit or action if the claim is for direct patent infringement, for direct copyright infringement, or for ElixirST’s trade secret misappropriation, and the claim is asserted against the Software alone and not in combination with anything else, or solely a combination of ElixirST Products.
- Exclusions: Notwithstanding anything to the contrary in this Agreement, ElixirST will not indemnify or defend Company for claims asserted, in whole or in part, against:
- technology, designs or requirements that Company gave to ElixirST;
- modifications or programming to Software that were made by anyone other than ElixirST; or
- the Software’s alleged implementation of some or all of a Standard.
- Remedies: ElixirST may, in its sole discretion and at its own expense, with respect to any Software that is subject to a claim:
- procure Company with the right to continue using the Software;
- replace the Software with a non-infringing Software;
- modify the Software so that it becomes non-infringing;
- 11.3 Indemnification procedure: The indemnified party (Indemnitee) will:
- Provide prompt written notice to the indemnifying party (Indemnitor) of the claim (provided that the failure to provide timely notice that prejudices the Indemnitor will relieve the Indemnitor of its obligations under this clause to the extent the Indemnitor has been prejudiced and the failure to provide timely notice will relieve the Indemnitor of any obligation to reimburse the Indemnitee for its attorney’s fees incurred prior to notification);
- reasonably cooperate in connection with the defense or settlement of the claim; and
- where the Indemnitor is ElixirST, give the Indemnitor sole control over the defense and settlement of the claim, provided that any settlement of a claim will not include a specific performance obligation or admission of liability by the Indemnitee.
- 11.4 Personal and exclusive indemnity: The foregoing indemnities are personal to the parties and may not be transferred to anyone. This clause states the parties’ entire indemnification obligations, and Company’s exclusive remedy claims involving Intellectual Property Rights.
12. PRIVACY AND COLLECTION OF PERSONAL DATA OR SYSTEM INFORMATION
- 12.1 The Software does not collect any Personal Identifiable Data (PII), and does not send the video footage outside Company’s premises. It collects anonymized data and sends the same to cloud. The Software may employ applications and tools to convert video footage into images to process them which includes data or other information about Company and its employees/visitors/contractors (including images of face mask or facial signature for attendance purposes) (collectively, Data).
- 12.2 The collection of the Data may be necessary to provide Company and its End Users with the relevant Data or Support functionalities as ordered (including detecting and reporting compliances and violations on Company’s premises).
- 12.4 Company will secure any and all privacy-related rights and permissions from individual persons as may be required by regulation, statute, or other law or Company’s internal policies or guidelines in order to disclose Company Personal Data, in order to use the Software, and/or in connection with ElixirST’s performance of Support or otherwise under this Agreement.
13. COMPLIANCE WITH LAWS
- 13.1 Each party will comply with the applicable national, state and local laws with respect to its rights and obligations under this Agreement, including applicable privacy and export control laws and regulations and other applicable anti-corruption laws.
- 13.2 Company will not, directly or indirectly, export, transmit, permit access or use any ElixirST Products or technical data (or any part of ElixirST Products or technical data) or system or service incorporating any ElixirST Products to or in any country to which export, transmission or access is restricted by regulation, statute or other law, without the authorization, if required, of the relevant authority as per Indian law or any other competent governmental entity that may have jurisdiction over export or transmission. Company will not use, transfer or access any ElixirST Products for end use relating to any nuclear, chemical or biological weapons, or missile technology unless authorized by the Indian Government by regulation or specific license.
- 13.3 If ElixirST receives notice that Company is or becomes identified as a sanctioned or restricted party under applicable law, ElixirST will not be obligated to perform any of its obligations under this Agreement if such performance would result in violation of the sanctions or restrictions.
14. GENERAL PROVISIONS
- 14.1 Relationship: The parties are independent contractors under this Agreement and expressly disclaim any partnership, franchise, joint venture, agency, employer/ employee, fiduciary or other special relationship. Neither party intends this Agreement to benefit or create any right or cause of action in or on behalf of, any person or entity other than the parties and listed Affiliates. This Agreement is not intended to create a third-party beneficiary of any kind. Company must not represent to any third party that it has any right to bind ElixirST in any manner and Company will not make any representations or warranties on behalf of ElixirST.
- 14.2 Severability: If a court holds that any provision of this Agreement is invalid or unenforceable under applicable law, the court will modify the provision to the minimum extent necessary to make it valid and enforceable or, if it cannot be made valid and enforceable, the court will sever and delete the provision from this Agreement. The change will affect neither the validity of the amended provision nor the validity of any other provision of this Agreement, which will continue in full force and effect.
- 14.3 No waiver: A party’s failure or delay in enforcing any provision of this Agreement will not operate as a waiver of the right to enforce that provision or any other provision of this Agreement at any time. A waiver of any provision of this Agreement must be in writing, specify the provision to be waived and signed by the party agreeing to the waiver.
- 14.4 Force Majeure; other excusable failures or delays in performance
- Neither party is liable for delays or failures to perform any of its obligations under this Agreement to the extent caused by a Force Majeure Event.
- ElixirST’s failures or delays in its performance are excused to the extent they result from:
- Company’s acts or omissions, or those of its employees, agents, users, affiliates or contractors;
- Company’s failure or delay in the performance of a specific task, obligation or responsibility under this Agreement or a Schedule, which task, obligation, or responsibility is a condition or requirement for a ElixirST task, obligation, or responsibility;
- reliance on instructions, authorizations, approvals or other information from Company; or
- acts or omissions of third parties (unless directed by ElixirST).
- 14.5 Governing Law And Dispute Resolution
- This Deed shall, in all respects, be governed by, and construed in accordance with the laws of India.
- Any dispute of whatever nature, which arises out of, in relation to, or otherwise connected with:
- the interpretation or effect of;
- the validity, enforceability or rectification (whether in whole or in part) of;
- the respective rights or obligations of the Parties; and/or
- a breach (including a breach of any representation and warranty and/or the materiality thereof and/or the amount of compensation payable in order to remedy such breach and/or the breach or failure to comply with any covenants or undertakings contained herein) or the termination or cancellation of, this Agreement or in regard to whether either Party have unreasonably withheld its approval or consent under circumstances in which it may not do so;
shall be dealt with in accordance with succeeding provisions of this Clause 14.5.
(All disputes arising out of reasons mentioned hereinabove shall be collectively referred to hereinafter as a “Dispute(s)”).
- All Disputes shall at the first instance be resolved through good faith negotiations, which negotiations shall begin promptly after a Party has delivered to the other Party a written request for such consultation.
- If the Parties are unable to resolve the Dispute in question within thirty (30) days of the commencement of negotiations in terms of Clause 14.5(c), then the Dispute shall, unless the Parties otherwise agree in writing, be referred for determination in accordance with the remaining provisions of this Clause 14.5.
- The Dispute(s) shall be referred to arbitration in accordance with the provisions of the (Indian) Arbitration and Conciliation Act, 1996. The seat of arbitration shall be New Delhi, India and the language used in the arbitral proceedings shall be English. The reference shall be to a sole arbitrator to be appointed by the Managing Director of ElixirST, in his sole discretion, acting as the appointing authority. The decision of the Arbitrator appointed to deal with such matters shall be accepted by the Parties as final and binding. The Parties shall continue to perform their respective obligations under this Deed, despite the continuance of the arbitration proceedings, except for the disputed part under arbitration.
- The Parties shall use their best endeavors to ensure that decision of the Arbitral Tribunal shall be given within a period of six (6) months, or as soon as possible thereafter, from the commencement of the arbitration proceedings.
This Clause 14.5 is severable from the rest of this Agreement and shall remain in effect even if this Agreement is terminated for any reason.
- The Courts of New Delhi, India shall have exclusive jurisdiction in relation to this Agreement, including this Clause 14.5
- All fees and costs pertaining to Clause 14.5(e) shall be borne equally by the Parties.
- All other fees and costs incurred by the Parties shall be borne by the respective Parties.
- 14.6 Entire Agreement, order of precedence and amendments
- This Agreement constitutes the entire understanding between ElixirST and Company relating to its subject-matter and supersede all oral or written proposals, and all communications between the parties relating to its subject-matter. This Agreement, including all documents incorporated by reference, will prevail, notwithstanding any variance with any purchase order or other written instrument submitted by Company, whether or not expressly rejected by ElixirST.
- ElixirST reserves the right to amend any terms of this Agreement at any time. Any amendment will be effective on the posting of an updated version at www.Enalytix.com/eula
- 14.7 Notices: Any notice given under or in relation to this Agreement must be in writing, signed by or on behalf of the party giving it, and addressed to the relevant ElixirST entity, “Attention Legal Department”, at the corresponding address, or to Company, at the contact information Company provided when purchasing or registering for the ElixirST Products. Notices will be considered delivered when received if delivered by hand with receipt; or shown delivered by the tracking mechanism of a pre-paid, nationally-recognized, overnight air courier with tracking capabilities or Indian Speed Post/Registered Post sent to the address mentioned above.
- 14.8 Additional documents and references: References to hyperlinked terms in this Agreement are references to the terms or content linked to the hyperlink (or the replacement hyperlink as ElixirST may identify from time to time) as amended from time to time. Company acknowledges that the terms or content in the hyperlink are incorporated in this Agreement by reference and that it is Company’s responsibility to review the terms or content in the hyperlinks referenced in this Agreement.
- 14.9 Assignment: Company may not sublicense, assign or transfer its rights under this Agreement without ElixirST’s prior written consent. Any attempt by Company to sublicense, assign or transfer any of its rights, duties or obligations under this Agreement, whether directly, or indirectly by merger, acquisition or change of control, will be null and void.
- 14.10 Survival: The following clauses, together with any other terms necessary for the interpretation or enforcement of this Agreement, will survive termination of this Agreement: 1 (Definitions and interpretation), 7 (Confidentiality), 8 (Intellectual Property Rights), 9 (Limited warranty and disclaimer), 10 (Limitation of liability), 11 (Indemnification), 12 (Privacy and collection of Personal Data or system information),14.5 (Governing law/Jurisdiction), and this Clause 14.10 (Survival).