Merlin Order - Terms and Conditions
These General Terms apply to Zycus’ Merlin Order and constitute a binding contract between Zycus and Licensee. By accepting these General Terms or executing Merlin Order or by accessing or using Software and/or Services as referred in applicable Order, Licensee confirms its acceptance of these General Terms and agrees to be a party to this binding contract. If Licensee does not agree to such General Terms, then Licensee shall not use any Software and/or Services provided by Zycus. These Terms and Conditions (“Terms”) govern the Merlin Order document as executed between Zycus and Licensee.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Definitions
- “Agreement” means these General Terms and any Order, through or by which the Licensee gets Software license and other Services.
- “Confidential Information” shall mean any non-public information or data that is designated “confidential” by a party and/or its affiliates or that a reasonable person should understand is confidential, including without limitation technical, business, strategic, products, legal or financial information or any information, which is received by the other party as part of the negotiation and/or the performance of this Agreement. In particular, Licensee’s data and the terms of this Agreement are Confidential Information.
- “Intellectual Property Rights” shall mean copyright, patents, designs, trademarks, trade names, goodwill rights, trade secrets, any other intellectual property right.
- “Licensee” means a party named in the Order to whom Software and/or Services are agreed to be provided.
- “Term” shall be for a limited period specified in the applicable Order.
- Order” refers to the ordering document, which may be styled as an order, that is signed by the Parties and shall reference this Agreement.
- “Software” means the generally available “as is “commercial release of the software set out in the applicable Order.
- “Services” means services as agreed to be performed by Zycus under applicable Order.
- “User” shall mean any Licensee’s employees and contractors. Licensee will ensure that any person having access to or use of the Software licensed to Licensee under this Agreement is subject to an obligation of confidentiality with respect thereto at least as restrictive as the confidentiality obligations set forth in this Agreement and shall use the Software only for the business purpose of Licensee.
2. Scope
Subject to the terms and conditions of this Agreement, Zycus shall provide Services and/or Software license to the Licensee as agreed in the Order. If Software is licensed to the Licensee, then such license shall be non-exclusive, non-transferable license to use the Software for the Term mentioned in the applicable Order. Licensee shall have no right to sub-license the Software. In addition, the license granted herein shall not constitute a sale, lease, rental or any other transfer of the Software or part thereof. Upon the end of the Agreement or an Order, Licensee’s right to use such Services and /or Software shall terminate.
3. Payment Terms
Licensee agrees to pay for all Services and/or Software as agreed in the Order, in accordance to the payment schedule set out in the applicable Order. Fess as mentioned in applicable Order shall be exclusive of taxes.
4. Intellectual Property Rights
Any and all rights to the Software and customization, training material, enhancements, upgrade, updates, its contents and any documentation provided therewith, including title, ownership rights and intellectual property rights such as copyrights, trademarks, service marks and patents therein shall remain the sole and exclusive property of Zycus and Licensee acquires only the limited rights granted in this Agreement. Licensee at all times retains all ownership and intellectual property rights in and to Licensee’s data, deliverables like reports, analyzed data generated by using Software and Licensee’ Confidential Information. Zycus retains all ownership and intellectual property rights to Zycus’ Software. Licensee hereby provides limited license to Zycus to use Licensee’s data only for the agreed purpose under this Agreement.
5. Representations and Warranties
In Providing the Software and/or Services, Zycus warrants that Zycus shall provide Software or perform the Services: properly and carefully, in a business like and professional manner according to the applicable Order; promptly and in accordance with applicable professional standards and principles; and it shall ensure it has obtained all necessary approvals needed to provide the Software or Services which includes all regulatory, legal and statutory clearances and permits and it shall act lawfully.
6. Disclaimer of Warranty
Licensee hereby expressly agrees and acknowledges that, the Software is provided “as is” without any implied representations, warranties or conditions of merchantability, merchantable quality, satisfactory quality all of which are expressly disclaimed and excluded. Any new feature requirement for the Software, put forth by the License, under any applicable Order, shall be governed by Zycus’ voice of customer process.
7. Indemnification
Zycus will defend, indemnify and hold harmless Licensee from and against any and all liability, suits, claims, actions, proceedings, losses, damages, judgments and reasonable costs (each, a “Claim”)to the extent that such Claim arises out of or is in relation to any allegation that the Software or Services infringes any patent or copyright or other proprietary right of any third party, provided that Zycus has no liability for any Claim based upon Licensee’s use of the Software in any manner for which it was not intended or is misused. The aforesaid indemnity shall be applicable provided that Zycus has been given prompt written notice of each such Claim, and the right to control and direct the investigation, defense and settlement of each such Claim. If the Software, or any part of it, is in Zycus opinion, likely to or does become the subject of a Claim for infringement of a third party’s proprietary rights, Zycus, at its sole option, may (i) obtain the right for Licensee to continue to use the Software, (ii) substitute equivalent of Software, or (iii) modify the Software so as to make it non-infringing.
Notwithstanding any other term of this Agreement to the contrary, in no event shall either party be liable to other party or any third party for any indirect, special, incidental, consequential, punitive or exemplary damages. The maximum liability of either party shall be limited to the fees paid by Licensee to Zycus under applicable Order, provided that, in those jurisdictions where limitations on liability for consequential or incidental damages are not permitted or curtailed, in such jurisdictions liability of Party shall be limited to the extent permitted by law.
8. Confidentiality
Confidential Information is, and shall remain, the exclusive property of the Disclosing Party. The Receiving Party shall treat and maintain all such Confidential Information received from the Disclosing Party as confidential, whether or not it has been physically marked as Confidential or Proprietary. The Confidential Information may be used by the Receiving Party only to the extent reasonably required in the performance of its obligations under this Agreement and may only be distributed to those employees, agents or contractors of the Receiving Party who have a need to know in order to perform pursuant to this Agreement, and who are bound to maintain confidentiality. The Confidential Information may not be released to any other person, entity, or the public without the prior written consent of the Disclosing Party. The Receiving Party shall protect all such Confidential Information of the Disclosing Party with no less than the care and diligence with which it protects its own Confidential Information and also with no less care and diligence than would generally be expected of a responsible party similarly situated. Each party shall only use the Confidential Information of the other party for the purpose set forth in this Agreement and shall not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any such Confidential Information. Either party shall not use the Confidential Information in any way to create a derivative work out of it or reverse engineer or for any other purpose detrimental to other party.
The foregoing obligations shall not apply to any Confidential Information (i) which is lawfully in the Receiving Party’s possession prior to its acquisition from the Disclosing Party; (ii) received in good faith from a third party not subject to any confidentiality obligation to the Disclosing Party; (iii) which now is or later becomes publicly known through no breach of confidentiality obligation by the Receiving Party; or (iv) is independently developed by the Receiving Party without the use or benefit of the Disclosing Party’s Confidential Information.
If the Receiving Party receives a request to disclose any Confidential Information to comply with any law, rule, regulation or order of a court or governmental agency, Receiving Party agrees that, prior to disclosing any Confidential Information, it shall (i) notify the Disclosing Party of the existence and terms of such request; (ii) cooperate with the Disclosing Party in taking legally available steps to resist or narrow any such request; and (iii) if disclosure is required, use its best efforts to obtain a protective order or other reliable assurance that confidential treatment will be afforded to the Confidential Information disclosed.
The parties acknowledge that any breach of this Section may cause immediate and irreparable injury to the non-breaching Party and that monetary damages will be inadequate to compensate the non-breaching Party for such breach. Having acknowledged the foregoing, the parties agree that, in the event of such breach, the non-breaching Party will be entitled to seek injunctive relief, in addition to all other remedies available to it at law or in equity. This Section in no way limits the liability or damages that may be assessed against the breaching Party in the event of a breach of any of the provisions of these confidentiality obligations.
Upon expiration or termination of this Agreement, the Receiving Party shall return or destroy all Confidential Information of the Disclosing Party in its possession as of the effective date of such termination or expiration to the Disclosing Party. The obligation of confidentiality and use with respect to Confidential Information shall survive termination of this Agreement.
9. Term and Termination
This Agreement is valid for any Order submitted to Zycus by Licensee for applicable Order that references this Agreement. The term of this Agreement will commence on the Effective Date of Order and, unless earlier terminated in accordance with its terms, will remain in effect for the term specified in the Order. Each Order can only be terminated in accordance to the termination, provision as mentioned under this clause, in addition to any other termination rights if any specified in the applicable Order.
Either party may terminate this Agreement in the event that (i) the other party is in default of any of its material obligations hereunder and such default is not remedied within 30 days of receipt of written notice thereof or (ii) the other party is adjudicated bankrupt or becomes insolvent, makes any assignment for the benefit of creditors, proceedings are instituted by the other party seeking relief, reorganization or rearrangement under any laws relating to insolvency, bankruptcy or similar laws of any jurisdiction, a receiver, liquidator or trustee is appointed in respect of any property or assets of the other party or an order is made for the liquidation, dissolution or winding up of the other party.
10. Force Majeure
“Force Majeure Event” shall mean either party’s impossibility or failure to perform its obligations; provided that such impossibility or failure, (i) is not due to its own act, omission, negligence or wilful misconduct, (ii) could not have been overcome by the exercise of due diligence by the affected Party, (iii) could not have been prevented by reasonable precautions of the affected Party (whether or not taken), and (iv) is caused by fire, flood, earthquake, elements of nature or acts of God, epidemic or pandemic, public utility or electrical failure, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, imposition of martial law or any similar cause (but excluding labour disputes and strikes) meeting all of the foregoing requirements that is beyond the reasonable control of the affected Party. In the event of Force Majeure, the affected Party shall immediately notify the non-affected Party of the occurrence of Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event. Subject to the above, if any Force Majeure Event lasts for more than thirty (30) calendar days, either Party may, upon prior written notice of not less than ten (10) days to the other Party, terminate the affected portion of the Services and/or Agreement without penalty of any kind. In the event of such termination, Licensee shall be liable to pay fees up to the date of termination.
11. Jurisdiction
This Agreement shall be governed in accordance with the laws of the place where Licensee’s registered office is situated (Region), as indicated in the Order. Any dispute arising hereunder, which is not settled through formal or informal negotiation or mediation between the parties, shall be referred to the courts of such Region. The parties are not agents or legal representatives of each other. This Agreement sets forth the entire agreement of the parties with respect to the subject matter contained herein, and no oral or written statement or representations not contained herein shall have any force or effect. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and such remaining provisions shall be reformed only to the extent necessary to make them enforceable under such circumstances.
