Channelplay is referred to as Licensor and Users and their organizations (paying for the use of 1Channel) are Licensee. Both are hereinafter also referred to as 'Parties' collectively and 'Party' individually.
NOW IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:
1.GRANT OF LICENSE
Subject to the terms and conditions of the Agreement, Licensor grants to Licensee a non-exclusive, non-transferable license to use the software namely "1 Channel" (the "Software") for the purpose agreed between parties. Licensee may use the Software in executable format for its own use only. Any translation or modification in the software if required by the Licensee shall be made only by the Licensor at its sole discretion. Licensee may not, however, transfer or sublicense the Softwares to any third party, in whole or in part, in any form, whether modified or unmodified.
Licensee shall pay, upon delivery/ installation of the Software, the license fees as agreed between parties.
License fees do not include any shipping, duties, bank fees, sales, use, excise or similar taxes due. If Licensor is required to pay any such amounts, Licensee shall reimburse Licensor in full.
Licensee may make copies of the Software in executable code form as necessary for use by Licensee and for backup or archive purposes. Licensee agrees to maintain records of the location and use of each copy, in whole or in part, of the Software. Each Software is copyrighted but unpublished by the Licensor. Licensee agrees to reproduce and apply the copyright notice and proprietary notice of the Licensor to all copies made hereunder, in whole or in part and in any form, of Software.
The original and any copies of the Software, made by Licensee, including translations, compilations, partial copies, modifications, and updates, are the property of the Licensor. Ownership of any modification or improvement made on the Software either by the Licensor, Licensee or any third party shall remain with the Licensor.
5. PROPRIETARY RIGHTS
Licensee recognizes that the Licensor regards the Software as its proprietary information and as confidential trade secrets of great value. Licensee agrees not to provide or to otherwise make available in any form the Software, or any portion thereof, to any person other than employees of Licensee without the prior written consent of the licensor. Licensee further agrees to treat the Software with the same degree of care with which Licensee treats its own confidential information and in no event with less care than is reasonably required to protect the confidentiality of the Software.
The license granted hereunder shall continue unless and until terminated pursuant to Clause 7 hereof and subject to Licensee's proper performance of its obligations hereunder.
The Licensor may terminate this Agreement if Licensee 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 the Licensor
8. TERMINATION CERTIFICATE
In the event of termination of this agreement, Licensee will immediately discontinue use of the Software. Within one (1) month from the date of termination of this Agreement, Licensee will furnish to the Licensor a certificate which certifies with respect to the Software 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 have been destroyed. The provisions of Sections 4, 5, 8, 11, and 13 hereof shall survive any termination of this Agreement.
9. MAINTENANCE SUPPORT
Licensor will provide to Licensee the following support with respect to the Software:
(i) If during the 1st year of this Agreement, Licensee notifies Licensor of a substantial program error respecting the Software, or Licensor has reason to believe that error exists in the Software and so notifies Licensee, Licensor shall verify and attempt to correct such error within thirty (30) working days after the date of notification. If Licensee is not satisfied with the correction, then Licensee may terminate this Agreement, but without refund of any amount paid to Licensor or release of any amounts due Licensor at the time of termination.
(ii) In the case that Licensee has technical questions in the use of the Software during the 1st year of this Agreement, Licensee may submit those questions to Licensor and licensor shall reply to the same.
(iii) If Licensee desires to continue the Software support specified in this section, Licensee shall pay to Licensor the maintenance fees as agreed between the parties.
10. DELIVERY OF SOFTWARE
The Licensor shall use its best efforts to deliver the Software promptly after receipt of the purchase order and export license (if required).
11. WARRANTY DISCLAIMER
The Licensor licenses, and Licensee accepts, the software "AS IS." LICENSOR PROVIDES NO WARRANTIES AS TO THE FUNCTION OR USE OF THE LICENSED PROGRAM, 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 IS WITH LICENSEE. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
12. PATENT AND COPYRIGHT INDEMNITY
The Licensor will defend any action brought against Licensee to the extent it is based on a claim that the Software used within the scope of the license granted hereunder infringe a patent, copyright or other proprietary right of a third party.
The Licensor shall have no liability for any claim of patent, copyright or trade secret infringement based on the use of a Software in any form other than the original, unmodified form provided to Licensee or the use of a combination of the Software with hardware, software or data not supplied by the Licensor where the used Software alone in their original, unmodified form would not constitute an infringement. The foregoing states Licensee's entire liability for infringement or claims of infringement of patents, copyrights or other intellectual property right.
13. LIMITATION OF LIABILITY
Licensors LIABILITY TO LICENSEE UNDER ANY PROVISIONS OF THIS AGREEMENT FOR DAMAGES FINALLY AWARDED SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID HEREUNDER BY LICENSEE TO Licensor. IN NO EVENT SHALL licensor 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.
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.
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 herein.
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.
17. GOVERNING LAW AND JURISDICTION
All disputes and differences between the Parties hereto under or is respect of any matter under this Agreement shall be referred for resolution by way of arbitration by Managing Director or any professional appointed by him in accordance with the provisions of the Arbitration and Conciliation Act, 1996 or any statutory modification or re-enactment thereof. The seat of the Arbitration shall be in the city of Gurgaon, Haryana and the courts in Gurgaon only shall have jurisdiction in relation thereto. The award made by arbitrator shall be binding on the parties hereto. The proceedings and communications whether written or oral, of arbitration shall be in the English language.
This Agreement and the licenses granted by it may not be assigned, sublicensed, or otherwise transferred by Licensee without the prior written consent of the licensor.
19. ENTIRE AGREEMENT
This Agreement sets forth the entire understanding between the parties with respect to the subject matter hereof, and merges and supersedes all prior agreements, discussions and understandings, express or implied, concerning such matters. This Agreement shall take precedence over any additional or conflicting terms which may be contained in Licensee's purchase order.