BELLADATI PTE. Ltd’s Standard Terms and Conditions (“COMPANY”) Validity since December 20th, 2019
In this License Agreement the following words and expressions have the following meanings:
(1) “Add-on Module” shall mean software module(s) that at any time may by added on to the Package as further described on www.belladati.com/en/on-premise
(2) “Annual Maintenance and Support Fee” shall mean the amount identified as such in the Order Form;
(3) “Package” shall mean the package of Licensed Software as further described onwww.belladati.com/en/on-premise
(4) “Parameter Increase” shall mean the additional Parameter increase to the Licensed Software that may be obtained by a Customer during the term of this License Agreement, as set out on www.belladati.com/en/on-premise
(5) “Documentation” shall mean all related user documentation and manuals, in whatever medium, regarding the proper installation and use of the Licensed Software;
(7) ”Effective Date” means the day and year written in the signature field for COMPANY in the acceptance section in the Order Form;
(8) “Total Software License Fee” shall mean the aggregate fee set forth in Order Form;
(9) “License Agreement” shall mean all contractual documents as defined in the Order Form;
(10) “Licensed Software” shall mean licensed computer software identified as such in the Order Form together with the
(11) “Term” shall have the meaning set forth in Section 19 of the Terms and Conditions;
(12) “Upgrade” shall mean the release of a version of the Licensed Software containing major changes to the structure of the Licensed Software where important new features may be added. The change to an Upgrade will be recognized by an increase in value of the primary version number (e.g. version 3.x to be replaced by version 4.x);
(13) “Update” shall mean the release of a version of the Licensed Software containing improvements and adjustments to the Licensed Software, however not including major structural changes and/or new important features. The change to an Update will be recognized by an increase in value of the secondary version number (e.g. version 3.0 to be replaced by version 3.1).
- License Terms
COMPANY grants to the Customer a perpetual (except as otherwise provided herein), non exclusive, non-transferable and non sublicensable license (“License”) to use the Licensed Software within the limits for parameters set forth in the Order Form and on www.belladati.com/en/on-premise-pricelist and the Documentation during the Term and according to the terms and conditions set out herein. License is limited for use on one physical or virtual server with one CPU in no clustered mode. Licence is limited for use in one country or one State unless agreed otherwise by the COMPANY. Except as otherwise agreed in writing by the COMPANY. Licensed Software must be installed on hardware system owned, leased or controlled by Licensee.
Customer may copy the Licensed Software for back-up or archival purposes, provided that any copy contains all of the original Licensed
Software’s proprietary notices. Customer may not: (i) permit other entities or individuals to use the Licensed Software except under the terms listed herein, (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction and provided that Customer has first requested from COMPANY the tools necessary to create interoperable programs), or create derivative works based on the Licensed Software, (iii) copy the Licensed Software (except as specified herein), (iv) export, directly or indirectly, the Licensed Software to any person or entity outside the United States in violation of applicable U.S. export laws, (v) sell, rent, lease, or otherwise transfer rights to the Licensed Software, (vi) remove any proprietary notices or labels on the Licensed Software.
License is limited for use on one physical or virtual server with one CPU in no clustered mode. License is limited for use in one country or one State unless agreed otherwise by the COMPANY
If Customer has purchased a Developer’s license (as indicated on the Order Form) Customer may use one copy of the licensed software and the Software Developer’s Kit to develop and test custom enhancements. This also includes support for developers in accordance with Schedule A-1 for so long as the customer is subscribing to Maintenance and Support hereunder.
- Installation of Upgrade and Update
The Terms and Conditions of this License Agreement shall apply to the initial copy of the Licensed Software as well as to any Upgrade or Update to the Licensed Software subsequently delivered to Customer. Customer must destroy all previous copies of the Licensed Software, however duplicated or archived, within thirty (30) days of installation of the Upgrade or Update. If the Upgrade or Update is to a Component Software of the Licensed Software, it may be used only as part of the single Licensed Software package and may not be separated for individual use.
- Maintenance and Support
For one year from the Effective Date, Customer shall purchase maintenance and support
services from COMPANY with respect to all software licensed hereunder. The Annual Maintenance and Support Fee entitles customer to the Support services described in Schedule A and the following maintenance services: (i) notification of and access to COMPANY software patches and documentation released by COMPANY; and (ii) notification of and access to Updates and Upgrades. Maintenance services do not include new modules released by COMPANY that include significantly different features and functionality, which are packaged and marketed as separate modules.
The Annual Maintenance and Support Fee is due and payable in advance at the time of payment of the Total Software License Fee. The Customer may elect between different levels of support, the alternatives of which are set out in Schedule A.
The Annual Maintenance and Support Fee in subsequent years shall be due and payable on each anniversary of the Effective Date, unless Customer notifies COMPANY in writing sixty (60) days in advance of such anniversary that Customer desires to terminate maintenance and support. If Customer terminates maintenance and support, COMPANY shall be under no obligation to resume providing such services to Customer under any circumstances.
If Customer licenses Add-on Modules or Parameters Increases effective on any date other than the Effective Date or any anniversary thereof, the Annual Maintenance and Support Fee for such Add-on Modules or Parameters Increases shall be pro-rated for the remainder of the year in question.
Under no circumstances will COMPANY be responsible for supporting or correcting any errors in the Licensed Software resulting from any modifications made to the Licensed Software by Customer, and COMPANY will not be liable for any loss or damage of any nature directly or indirectly caused by such modifications. Customer must install Updates that contain bug-fixes in order to receive Maintenance and Support.
COMPANY may, at its sole discretion, cease providing Maintenance and Support for any prior version of the Licensed Software six (6) months after an Upgrade is made available.
Furthermore, at such time as COMPANY decides to cease maintaining and supporting the Licensed Software for its entire customer base, COMPANY may cease providing Maintenance and Support two years after such decision is communicated by written notice to Customer.
- License Fees
COMPANY shall invoice the Customer in respect of the Total Software License Fee(s) on the Effective Date.
5.2. Future Purchases
The Customer may purchase additional Packages, Add-on Modules and/or Parameters Increases upon payment to COMPANY of the fees therefore then in effect.
- General Payment Conditions
Payment of Total Software License Fee, Annual Maintenance and Support Fee and any other fees shall be made by electronic wire transfer to a bank account to be designated in writing by COMPANY. Any invoices shall be due and payable within 28 days of the invoice date.
Overdue payments shall bear interest at the rate of 12% annually, or the maximum permitted by applicable law, whichever is less, and Customer shall reimburse COMPANY for all costs COMPANY incurs attempting to recover payments due.
The Total Software License Fee, Annual Maintenance and Support Fee and any other fees are up-front non-refundable fees.
All fees, of whatever kind, are exclusive of all sales taxes, use taxes, value added taxes and any other similar taxes imposed by any federal, state, provincial or local governmental entity on the transactions contemplated by this Agreement, excluding taxes based upon COMPANY’s net income. When COMPANY has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides COMPANY with a valid tax exemption certificate authorized by the appropriate taxing authority.
In the event that any withholding taxes or any other similar taxes are imposed by any federal, state, provincial or local governmental entity on
the transactions contemplated by this License Agreement Customer shall pay such taxes in such amounts as are necessary to ensure that COMPANY receives the full amount of the then due fees.
COMPANY shall deliver one copy of the Licensed Software to Customer, including software keys to enable use of the Licensed Software, unless otherwise expressly stated in the Order Form.
- Audit Right
COMPANY or its designee shall have the right to have a reputable third party inspect Customer’s data processing systems and records for the sole purpose of verifying that Customer has complied with these Terms and Conditions and reporting its findings to COMPANY. Such inspections will be made on not less than ten (10) days written notice, during regular business hours. If the inspection reveals an underpayment to COMPANY of license fees, the Customer shall pay to COMPANY the deficit. COMPANY shall bear the expense of such inspection unless the inspection reveals license fees that vary more than five percent (5%) from the license fees paid to COMPANY, in which case the Customer shall bear the costs associated with the inspection.
- Limited Warranty
9.1 COMPANY is the owner or licensee of all intellectual property rights in and to the Licensed Software and there is no pending litigation against COMPANY which could materially impact upon its ability to perform its obligations under this License Agreement.
9.2 COMPANY has full power and right to license the Licensed Software and perform all other terms of this License Agreement, and the use of Licensed Software, or the exercise of the licenses granted hereunder, will not violate or interfere with the intellectual property or contractual rights of any third party, including without limitation, those rights arising under copyright, trademark, trade secret or patent law, provided, however that COMPANY shall not be liable for breach of representation and warranty if a violation or interference occurs by reason of content supplied by Customer, content owners, end users or other third parties.
9.3 COMPANY warrants that, for a period of ninety (90) days from the Effective Date, the CD or other media on which the Licensed Software is furnished (“Media”) shall be free from defects in materials and workmanship under normal use and service.
9.4 In the event that such media is proven to be defective, COMPANY’s entire liability and Customer’s sole and exclusive remedy shall be replacement of the media or such part of the media not meeting COMPANY’s limited warranty, provided that Customer returns the media or such part of the media to COMPANY with a copy of Customer’s dated receipt. If failure of the media or any part of the media has resulted from accident, abuse, or misapplication of the Licensed Software, then COMPANY shall have no obligation to replace the media or any such part of the media under this limited warranty.
9.5 For a period of ninety (90) days from the Effective Date, COMPANY warrants that the Licensed Software will substantially conform to the Documentation. Without cost to Customer, COMPANY shall correct any failure of the Licensed Software to conform to the foregoing warranty if the failure is reported in writing in accordance with the Notices Section during the warranty period. If COMPANY is unable to modify the Licensed Software so that it substantially conforms to the Documentation, Customer’s sole and exclusive remedy is to receive a full refund of all amounts paid hereunder upon return of the Licensed Software.
9.6 COMPANY shall have no obligation or other liability with regard to any error or non compliance with the warranties set forth above that is caused, in whole or in part by; (a) modifications or alterations to the Licensed Software made by the Customer; (b) use of the Licensed Software by the Customer other than as contemplated herein; (c) products or services not provided by COMPANY; (d) the negligence or willful misconduct of Customer; (e) the Customer’s implementation and installation of the Licensed Software other than in accordance with instructions furnished by COMPANY; or (f) electrical malfunction. COMPANY shall have no liability to the Customer under this license agreement, or otherwise, by reason of content supplied by the Customer, content owners, end users or other third parties.
COMPANY agrees to indemnify and hold harmless the Customer from and against any and all third party claims or actions, including any losses, costs, liabilities, reasonable attorney’s fees and other expenses arising from such claim or action, alleging that the Licensed Software infringes or violates any copyright, trademark, patent or trade secret of a third party, provided: (i) the Customer promptly gives written notice of any claim to COMPANY; (ii) the Customer provides any assistance which COMPANY may reasonably request for the defense of the claim; and (iii) COMPANY has the right to control of the defense or settlement of the claim. In any action based on an Infringement Claim, COMPANY may, at its sole option, either: (x) obtain for Customer the right to continue using the Licensed Software, (y) replace or modify the Licensed Software with non-infringing software providing substantially the same functionality, or (z) terminate the license granted hereunder and give Customer a pro-rata refund of the license fee paid for the Licensed Software, calculated on the basis of straight line depreciation over three years.
- Disclaimer of Warranties
THE LICENSED SOFTWARE IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EXCEPT AS STATED IN SECTION 9. THE ENTIRE RISK AS TO THE RESULT AND PERFORMANCE OF THE LICENSED SOFTWARE IS ASSUMED BY CUSTOMER. EXCEPT AS STATED IN SECTION 9, COMPANY AND ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE LICENSED SOFTWARE OR THE USE OR OPERATION THEREOF AND SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Limitation of Liability
Except with respect to claims relating to breach of the confidentiality provisions herein, intellectual property infringement or use of the software by Customer outside of the scope of the license granted herein , under no circumstances shall either party’s aggregate liability to the other party arising out of or related to this License Agreement exceed the lesser of (i) the aggregate fees due or paid to COMPANY from Customer
at the time of such Party’s claim or (ii) the actual damages sustained by such party, regardless of whether any action or claim is based on warranty, contract, tort or otherwise. Each party hereby releases the other party from all obligations, liability, claims or demand in excess of this limitation.
Neither COMPANY nor its licensors and suppliers, nor Customer, shall be liable for any special, indirect, incidental, or consequential damages, including, but not limited to, any loss of revenues, lost profits, loss of or inaccuracy of data, or lost or interrupted business, however caused and whether based in tort (including negligence), contract, or any other theory of liability, even if such entity has been advised of the possibility of such damages.
This limitation of liability shall apply to the maximum extent permitted by law.
- Customer’s Representations and Warranties
Customer represents and warrants that it has the right to enter into this License Agreement, that Customer is a corporation duly organized and existing (and in good standing) under the laws of the country or state of its incorporation and has the power and authority (corporate or otherwise) to execute and deliver this License Agreement.
Title, ownership rights, and any and all intellectual property rights in and to the Licensed Software shall remain in COMPANY and/or its licensors and suppliers. The Licensed Software is protected by copyright laws and international copyright treaties. Title, ownership rights, and intellectual property rights in and to the content accessed through the Licensed Software is the property of the applicable content owner and may be protected by applicable copyright or other law. This License Agreement gives Customer no rights to such content. Except as expressly provided herein, all right, title and interest in and to the Licensed Software remains with COMPANY and its licensors and suppliers.
- U.S. Government-Restricted Rights
The Licensed Software is a “commercial item” as that term is defined in 48 CFR 12.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software
documentation” as such terms are used in 48 CFR 12.212 (Sept. 1995). Consistent with 48 CFR 12.212 and 48 CFR 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software with only those rights explicitly set forth herein.
- Purchases in Canada
If the Licensed Software is purchased in Canada, Customer agrees to the following: The parties hereto confirm that it is their wish that this license as well as any other documents relating hereto, including notices, has been and shall be written in the English Language (Les parties aux présentes confirment leur volonté que cette License de même que tous les documents y compris et tout avis qui s’y rattache soient redigés en langue anglaise).
- Press Releases and Other Promotions
COMPANY may reference Customer’s name and the nature of the Services provided hereunder in COMPANY business development and marketing efforts, including without limitation its web site.
- Confidential Information
During the term of this License Agreement and thereafter, each party will use and reproduce the other party’s Confidential Information only for the purposes of this Agreement and will restrict disclosure of the other party’s Confidential Information to its employees, Affiliates and employees of Affiliates, with a need to know who are under a binding obligation to comply with the restrictions set forth in this Section 18 and will not disclose the other party’s Confidential Information to any third-party without the prior written approval of the other party. Notwithstanding the foregoing, it will not be a breach of this License Agreement for either party to disclose Confidential Information of the other party if required to do so under law or in a judicial or other governmental investigation or proceeding, provided that the other party has been given prior notice and the disclosing party has sought all available safeguards against widespread dissemination prior to such disclosure.
As used in this License Agreement, the term “Confidential Information” refers to: (i) the prices set forth in this License Agreement; (ii) each
party’s trade secrets, business plans, strategies, methods and/or practices; (iii) any other information relating to either party or its business that is not generally known to the public, including but not limited to information about either party’s personnel, products, customers, marketing strategies, services, pricing or future business plans. Notwithstanding the foregoing, the term “Confidential Information” specifically excludes (A) information that is now in the public domain or subsequently enters the public domain by publication or otherwise through no action or fault of the other party; (B) information that is known to either party without restriction, prior to receipt from the other party under this License Agreement, from its own independent sources as evidenced by such party’s written records, and which was not acquired, directly or indirectly, from the other party; (C) information that either party receives from any third party reasonably known by such receiving party to have a legal right to transmit such information, and not under any obligation to keep such information confidential; and (D) information independently developed by either party’s employees or agents provided that either party can show that those employees or agents had no access to the Confidential Information received hereunder.
- Term and Termination
This License Agreement will become effective on the Effective Date and will remain in effect until terminated in accordance with the following paragraph.
Either party may terminate this License Agreement forthwith if the other party materially defaults under this License Agreement and fails to cure such default within 45 days after receipt of written notice of such default from the other party.
Either party may terminate this License Agreement forthwith if the other party files a petition for bankruptcy, or makes an assignment for the benefit of the creditors, or a receiver is appointed for the other party or its business.
19.3. Results of Termination
All Licenses granted herein shall become null and void upon the termination of this License Agreement. Following the termination of this License Agreement, for whatever reason, Customer shall return to COMPANY any and all software program documentation or any other materials, copies or reproductions of the foregoing, relating to the Licensed Software, and Upgrade(s), Update(s) and enhancements thereto. Further, upon termination of this License Agreement, both parties shall promptly, and in any event within 30 days following termination, return to the other party all other property and Confidential Information belonging to the other, in all forms partial and complete, in all types of media and computer memory, and whether or not merged with other materials, or to the extent such return is not reasonably practical, will destroy the foregoing and provide the originating party with a certificate by an officer of the company certifying destruction.
- Force Majeure
Neither party shall be liable to the other for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or non-performance is due to an event of Force Majeure.
Events of Force Majeure are events beyond the control of the party which occur after the time of signing of this License Agreement and which were not reasonably foreseeable at the time of signature of this License Agreement and whose effects are not capable of being overcome without unreasonable expense or loss of time to the party concerned. Events of Force Majeure shall include (without being limited to) war, acts of government, natural disasters, fire and explosions.
- Independent Contractors
Nothing in this License Agreement shall create, evidence or imply any agency, partnership or joint venture between the parties. Neither party shall act or describe itself as the agent of the other nor shall it represent that it has any authority to make commitments on the other’s behalf.
If any provision of this License Agreement is declared by any judicial or other competent
authority to be void, voidable, illegal or otherwise unenforceable then the remaining provisions of this License Agreement shall continue in full force and effect. The judicial or other competent authority making such determination shall have the power to limit, construe or reduce the duration, scope, activity and/or area of such provision, and/or delete specific words or phrases as necessary to render such provision enforceable.
Either party shall have the right, at its own discretion and at any given time during the Term of this License Agreement, to assign the License Agreement to an Succesor. COMPANY may assign this License Agreement to any successor of COMPANY. The Customer may assign this License Agreement to any successor of the Customer, provided, however, that the successor is not a competitor of the business and affairs of COMPANY.
This License Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
Except as may be otherwise provided herein, all notices, requests, demands, waivers and other communications made pursuant to this License Agreement shall be in writing and shall be conclusively deemed to have been duly given upon receipt: (i) if delivered by hand or (ii) if
delivered by DHL or similar internationally recognized overnight courier or (iii) if delivered by certified mail return receipt requested.
Notices are to be sent to COMPANY to the address at stated on top of the Order Form Notices to the Customer are to be sent to the address set out in the Order Form.
- Choice of Law and Forum
This License Agreement, its interpretation, performance or any breach thereof, will be construed in accordance with, and all questions with respect thereto will be determined by, the laws of the country or State of COMPANY’s incorporation. Both parties hereby irrevocably submit any disputes under this License Agreement to the jurisdiction of the courts located in the country or State of COMPANY’s incorporation.
This License Agreement represents the complete agreement concerning the subject matter hereof and supersedes all prior agreements and representations between the parties.
This License Agreement may only be amended in writing, executed by both parties.
All terms of this License Agreement that by their nature extend beyond its termination remain in effect until fulfilled, and apply to respective successors and assigns.