End User Licensing Agreement
IMPORTANT PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE CONTINUING WITH THIS PROGRAM INSTALL AND PURCHASE. MOBICOMMERCE END-USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE LEGAL ENTITY) AND MOBICOMMERCE FOR THE USE OF THE MOBICOMMERCE SOFTWARE DELIVERABLES, AS DEFINED BELOW.
MOBICOMMERCE IS ONLY WILLING TO LICENSE THE DELIVERABLES TO YOU ON CONDITION THAT YOU ACCEPT ALL OF THE TERMS IN THIS LICENCE. BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. THIS LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE PROGRAM BETWEEN YOU AND MOBICOMMERCE, (REFERRED TO AS “LICENSER”), AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL OR USE THE SOFTWARE PRODUCT.
THE SOFTWARE PRODUCT IS PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES. THE SOFTWARE PRODUCT IS LICENSED, NOT SOLD.
“DELIVERABLES” MEANS THE SOFTWARE BINARIES, ENCRYPTED SOURCE CODE AND READY TO PUBLISHED PACKAGED MOBILE APPS, ASSOCIATED SOFTWARE COMPONENTS, MEDIA, PRINTED MATERIALS, AND “ONLINE”; OR ELECTRONIC DOCUMENTATION (“SOFTWARE PRODUCT”), EXCLUDING ALL ADD ON SERVICES AS DEFINED BELOW.
“ADD ON SERVICES” MEANS ALL OPTIONAL SERVICES OR SEPERATLY CHARGED OPTIONAL SERVICES SUCH AS APPS PUBLISHING SERVICES, GRAPHIC SERVICESES.
- GRANT OF LICENSE : Subject to the terms and conditions of the Agreement, MOBICOMMERCE grants to you a non-exclusive, non-transferable license to use the MobiCommerce Software Deliverables. You may use the Licensed Program in executable format for its own use, and may translate or modify the Licensed Program. You may not, however, transfer or sublicense the SOFTWARE PRODUCT to any third party, in whole or in part, in any form, whether modified or unmodified.
- COPIES : You may make copies of the SOFTWARE PRODUCT in executable code form as necessary for backup or archive purposes. You agree to maintain records of the location and use of each copy, in whole or in part, of the SOFTWARE PRODUCT. Each SOFTWARE PRODUCT is copyrighted but unpublished by MOBICOMMERCE. You agrees to reproduce and apply the copyright notice and proprietary notice of MOBICOMMERCE to all copies made hereunder, in whole or in part and in any form, of SOFTWARE PRODUCT.
- REFUND POLICY : You hereby agree MobiCommerce Refund and Cancellation Policy.
- OWNERSHIP : The original and any copies of the SOFTWARE PRODUCT, made by you, including translations, compilations, partial copies, modifications, and updates, are the property of MOBICOMMERCE.
- PROPRIETARY RIGHTS : You recognize that MOBICOMMERCE regards the SOFTWARE PRODUCT as its proprietary information and as confidential trade secrets of great value. You agree not to provide or to otherwise make available in any form the SOFTWARE PRODUCT, or any portion thereof, to any person other than employees of you without the prior written consent of MOBICOMMERCE. You further agree to treat the SOFTWARE PRODUCT with at least the same degree of care with which you treats its own confidential information and in no event with less care than is reasonably required to protect the confidentiality of the SOFTWARE PRODUCT.
- TERM : The license granted hereunder shall continue unless and until terminated pursuant to Section 7 hereof and subject to your proper performance of its obligations here under.
- TERMINATION : MOBICOMMERCE may terminate this Agreement if You is in default of any of the terms and conditions of this Agreement and fails to correct such default within ten (10) days after written notice thereof from MOBICOMMERCE.
- TERMINATION CERTIFICATE : In the event of termination, you will immediately discontinue use of the SOFTWARE PRODUCT. Within one (1) month after termination of this Agreement, You will furnish to MOBICOMMERCE a certificate which certifies with respect to each of the SOFTWARE PRODUCT that, through its best effort and to the best of its knowledge, the original and all copies, in whole or in part and in any form, of each of the SOFTWARE PRODUCT have been destroyed. The provisions of Sections 4, 5, 8, 11, and 13 hereof shall survive any termination of this Agreement.
- AMC (SUPPORT AND MAINTENANCE) POLICY : You hereby agree AMC (Support and Maintenance) Policy
- DELIVERY OF SOFTWARE PRODUCT : MOBICOMMERCE shall use its best efforts to deliver the SOFTWARE PRODUCT promptly after receipt of the purchase order and export license (if required).
- WARRANTY DISCLAIMER : MOBICOMMERCE licenses, and you accepts, the SOFTWARE PRODUCT “AS IS.” MOBICOMMERCE PROVIDES NO WARRANTIES AS TO THE FUNCTION OR USE OF THE SOFTWARE PRODUCT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE PRODUCT IS WITH YOU. LICENSER DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE PRODUCT WILL MEET YOU’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE.
- PATENT AND COPYRIGHT INDEMNITY : MOBICOMMERCE will defend at its own expense any action brought against you to the extent it is based on a claim that the SOFTWARE PRODUCT used within the scope of the license granted hereunder infringe a India patent, copyright or other proprietary right of a third party. MOBICOMMERCE will pay any costs, damages or attorney fees finally awarded against you in such action which are attributable to such claim, provided MOBICOMMERCE is promptly notified in writing of such claim, may control the defense and/or settlement of such claim, and is provided with all requested assistance, information and authority. In the event that a SOFTWARE PRODUCT becomes, or in MOBICOMMERCE’s opinion is likely to become, the subject of a claim of infringement of a India patent, copyright or trade secret, MOBICOMMERCE may at its option either secure your right to continue using the SOFTWARE PRODUCT, replace or modify the SOFTWARE PRODUCT to make them not infringing, or provide You with a refund of the license fee less depreciation on a 5 (five) year, straight-line basis. MOBICOMMERCE shall have no liability for any claim of patent, copyright or trade secret infringement based on the use of a SOFTWARE PRODUCT in any form other than the original, unmodified form provided to You or the use of a combination of the SOFTWARE PRODUCT with hardware, software or data not supplied by MOBICOMMERCE where the used SOFTWARE PRODUCT alone in their original, unmodified form would not constitute an infringement. The foregoing states your entire liability for infringement or claims of infringement of patents, copyrights or other intellectual property right.
- LIMITATION OF LIABILITY : MOBICOMMERCE’S LIABILITY TO YOU UNDER ANY PROVISIONS OF THIS AGREEMENT FOR DAMAGES FINALLY AWARDED SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID HEREUNDER BY YOU TO MOBICOMMERCE. IN NO EVENT SHALL MOBICOMMERCE BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF USE, LOSS OF PROFITS OR INTERRUPTION OF BUSINESS, HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY.
- NOTICES : All notices in connection with this Agreement shall be in writing and may be given by certified, registered, or first class mail or personally delivered at the address set forth on the front page. For purposes of this Agreement, a notice shall be deemed effective upon personal delivery to the party or if by mail five days after proper deposit in a mail box.
- SUCCESSORS : This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective representatives, successors and assigns except as otherwise provided here in.
- SEVERABILITY : In the event any provision of this Agreement is determined to be invalid or unenforceable, the remainder of this Agreement shall remain in force as if such provision were not a part.
- GOVERNING LAW/FORUM : This Agreement shall be governed and interpreted by the laws of the India. Ahmedabad, shall be the appropriate venue and jurisdiction for the resolution of any disputes hereunder. Both parties hereby consent to such personal and exclusive jurisdiction.
- NON-ASSIGNMENT : This Agreement and the licenses granted by it may not be assigned, sublicensed, or otherwise transferred by you without the prior written consent of MOBICOMMERCE.
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