Smarten: Terms and Conditions

IMPORTANT, PLEASE READ CAREFULLY. THIS IS AN END USER LICENSE  AGREEMENT

This Software Product is protected by copyright laws as well as other intellectual  property laws. This Software Product is licensed, not sold.

End User License Agreement

This End User License Agreement (“EULA” or “Agreement”) is a legal agreement  between you (either an individual or a single entity) and Elegant MicroWeb  Technologies Pvt. Ltd. (hereinafter referred to as “Company”) covering your use of  Smarten Insights (hereinafter referred to as “Software Product” or “Software”) provided with  this EULA. The Software Product includes computer software, the associated media,  any printed materials, and any “online” or electronic documentation. Use of any  software and related documentation provided to you by the Company in whatever form  or media, will constitute your acceptance of these terms, unless separate terms are  provided by the software supplier, in which case certain additional or different terms  may apply. If you do not agree with the terms of this EULA, do not download, install,  copy or use the Software. By installing, copying or otherwise using the Software  Product, you agree to be bound by the terms of this EULA. If you do not agree to the  terms of this EULA, the Company is unwilling to license the Software Product to you. 

1. Eligible Licensees.

This Software is available for license solely to you as a licensee to be used in  accordance with the terms of this EULA, with no right of duplication or further  distribution, licensing, or sub-licensing. IF YOU ARE NOT THE INTENDED  LICENSEE, THEN DO NOT DOWNLOAD, INSTALL, COPY OR USE THE  SOFTWARE.

2. License Grant. 

The Company grants to you a perpetual, nonexclusive and non-transferable license  to use the current version of the Software provided with this EULA.  You shall have an option to purchase other licenses in future at any time during the  term of this EULA by paying appropriate License Fee as decided by the Company.

The installation of the Software will be through a license key provided by Company.  You shall provide requisite information to the Company to enable Software  installation. You shall not tamper with the license key, and the installation of the  Software shall be in accordance with the license key provided by the Company.

3. License Restrictions. 

1. The Software contains copyrighted material, trade secrets and other  proprietary material. You shall not: 
   • sell, lease, license, sublicense, distribute or otherwise transfer in  whole or in part the Software;
   • copy the Software except as expressly permitted herein; 
   • modify, translate, adapt, alter, or create derivative works from the  Software; 
   • merge the Software with any other software or documentation;
   • reverse engineer, decompile, disassemble, or otherwise attempt to  derive the source code of the Software; 
   • remove, alter or obscure any titles, product logo or brand name,  trademarks, copyright notices, proprietary notices or other  indications of the intellectual property rights and/or Company’s  rights and ownership thereof, whether such notice or indications  are affixed on, contained in or otherwise connected to the  Software or on any copies made in accordance with this  Agreement.
   • use, or authorize or permit the use of, the Software except as  expressly permitted herein use this Software to perform any  activity which is or may be, directly or indirectly, unlawful, harmful,  threatening, abusive, harassing, tortuous, or defamatory, nor to  perform any activity which breaches the rights of any third party.
2. No rights or licenses shall be deemed to be granted by estoppel,  implication, exhaustion, other doctrine of law, equity or otherwise, and  the Company reserves any and all rights not expressly granted herein.  The Source Code is not being provided or licensed hereunder and is a  trade secret of the Company to which access is not authorized. You shall  not attempt to derive Source Code from the Software and will not attempt  to reveal or recreate or reverse engineer the Source Code.
3. Company may, at any time and from time to time, change or discontinue  or introduce products, add-ons or modules, new license schemes or user  types or modify access rights of some user types.Further, Company  reserves the right, in its sole discretion, at any time and from time to time,  to add, delete or modify any or all of the Software Product, or to  discontinue the publication, distribution, sale, support or licensing of any  or all of the Software Product without liability of any kind.

4. Copyright. 

The Software is licensed, not sold. You acknowledge that no title to the intellectual  property including copyrights, trademarks or any other proprietary rights in the  Software is transferred to you. You further acknowledge that title and full ownership  rights to the Software will remain the exclusive property of the Company, and you  will not acquire any rights to the Software, except as expressly set forth above.  Company shall own all rights, title and interest in all developments of and  enhancements to the Software. All copies of the Software will contain the same  proprietary notices as contained in or on the Software. All title and copyrights in and to the Software Product (including but not limited to any images, photographs,  animations, video, audio, music, text and “applets,” incorporated into the Software  Product), the accompanying printed materials, any copies of the Software Product,  and any trademarks related to the Software Product, are owned by the Company or  its suppliers. The Software Product is protected by copyright laws and other  intellectual property laws. You may not copy the printed materials accompanying  the Software Product.

5. Termination. 

Without prejudice to any other rights, the Company may terminate this EULA if you  fail to comply with the terms and conditions of this EULA. In such event, your right  to use the Software and the rights to use the files produced using the Software by  third parties terminates automatically and you must then destroy all copies of the  Software in your possession. Any License Fee paid by you is non-refundable  except as expressly set forth otherwise in this EULA.

Termination or expiration of this EULA shall not release you from the obligations  arising hereunder prior to such termination or expiration including the obligation to  make payment of all amounts then or thereafter due and payable. Termination of  this EULA shall not preclude the Company from exercising any other rights or  remedies that it may have under this EULA or at law. Any terms of this EULA which  by their nature extend beyond the day this EULA ends remain in effect until fulfilled.

6. Limited Warranty.

1. Company warrants that Software will conform, as to all substantial  operational features for ninety (90) days following delivery of the  Software to you (not including delivery of any subsequent modifications,  updates or upgrades to the Software), when installed on the hardware or  other platform, designated or recommended by Company, without  modification.
2. COMPANY DOES NOT WARRANT THAT: (A) THE OPERATION OF  THE SOFTWARE OR HARDWARE WILL BE UNINTERRUPTED OR  ERROR-FREE OR THAT FUNCTIONS CONTAINED IN THE  SOFTWARE WILL OPERATE IN COMBINATIONS OF SOFTWARE OR  HARDWARE THAT MAY BE SELECTED FOR USE BY YOU; (B) THE  SOFTWARE WILL MEET YOUR REQUIREMENTS OR  EXPECTATIONS; OR (C) ANY RESULTS, OUTPUT, OR DATA  PROVIDED THROUGH OR GENERATED BY THE SOFTWARE WILL  BE ACCURATE, UP-TO-DATE, COMPLETE OR RELIABLE.
3. The warranty shall not apply: 
   • if the Software is not installed in accordance with the license  key mechanism provided by Company or used in accordance  with the Company’s current published specifications; or 
   • if you are not using the latest version of the Software or the  version being used by you is not currently supported by  Company; or
   • if you have not subscribed to the annual maintenance and  support provided by Company or have failed to pay the fee for  annual maintenance and support and hence do not have the  updates and or the upgrades mandated by Company; or 
   • to any third party software or hardware, including the third party  database or application server; or
   • if the Software has been subjected to any modification;
   • if the Software is not installed on the hardware or platform  designated or recommended by Company; or 
   • to the extent that the defect is caused by or is contributed to by  you; or
   • if you do not provide access, including remote access, to the  Software to Company’s support personnel; or
   • if the failure is caused by an accident, abuse or misapplication  of the Software; or 
   • if the defect is caused by any third party software or hardware  not belonging to Company.
4. The obligations of Company to provide remedy set out in Section 6(e)  below, is subject to the following conditions precedent: 
   • You shall provide sufficient detail to allow the Company to  reproduce the error or duplicate the problem, demonstrate to  Company the occurrence of the defect or error and shall provide  Company with sufficient test time to verify the problem; 
   • all corrections will be made at the Company’s facility and the  expense of any travel to your facility will be borne by you; 
   • You shall obtain a return material authorization from Company  before returning the defective product, 
   • You may be required to reimburse Company for its services in  the event that Company confirms that there is no error in the  Software or that the error was caused by you and 
   • You shall notify the Company in writing with a specific  description of the Software’s non-conformance within the  warranty period and Company validates the existence of such  non-conformance.
5. Subject to the satisfaction of all the conditions precedent in Section 6(d)  above, if the Company validates the existence of the non-conformance of  the Software with the warranty provided by Company to you in Section  6(a) above, Company will, at its option:
   • fix the errors that significantly affect the performance of the  nonconforming Software or repair or replace the nonconforming  Software, or 
   • in exchange of such nonconforming Software, refund the  License Fee after deducting five percent (5%) per month of the  total License Fee amount for the number of months the  nonconforming Software is used, provided however the refund  shall not exceed the total License Fee paid for the applicable  nonconforming Software. 
   • These are your sole and exclusive remedies provided for breach of any  warranty provided by Company under this EULA. 
6. THE ABOVE IS A LIMITED WARRANTY AND IT IS THE ONLY  WARRANTY MADE BY COMPANY. EXCEPT AS EXPRESSLY STATED  IN THIS SECTION 6, TO THE MAXIMUM EXTENT PERMITTED BY  LAW, COMPANY SPECIFICALLY DISCLAIMS ALL OTHER  WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN,  ARISING BY LAW OR OTHERWISE, RELATING TO THIS  AGREEMENT AND THE SOFTWARE AND ANY SERVICES  PROVIDED TO YOU, INCLUDING WITHOUT LIMITATION, ANY  IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A  PARTICULAR PURPOSE OR USE, TITLE AND NON-INFRINGEMENT  OF THIRD PARTY RIGHTS. NOTWITHSTANDING ANYTHING TO THE  CONTRARY CONTAINED HEREIN, THE COMPANY IS MAKING NO  REPRESENTATION OR WARRANTY WITH RESPECT TO THIRD  PARTY PRODUCTS AND SERVICES. NO PERSON IS AUTHORIZED  TO MAKE ANY OTHER WARRANTY OR REPRESENTATION  CONCERNING THE SOFTWARE OR THE MEDIA ON WHICH  SOFTWARE IS SUPPLIED.

7. Third Party Rights

1. Company makes no representation with respect to the possibility of  infringement by Combination Use (as defined below) of the Software.  Company has no duty to investigate or to warn you of such possibility.  Without limiting the generality of the foregoing, the obligations of  Company under Section 7(b) shall not apply to the extent the alleged  infringement or misappropriation results from: 
   • alteration of the Software by anyone other than Company ; 
   • failure to use a substantially equivalent non-infringing alternative  program provided by Company if such infringement or  misappropriation could have been avoided by use of the update, or  unlicensed activities or 
   • the fact that you continue to use a particular version, release or  correction level of the Software after being notified of the possibility  of an infringement and after having been supplied by Company with  a modified version, release or correction level which would have  avoided the alleged infringement, or
   • the Combination Use of the Software, Documentation or Company  materials; when such alteration or Combination Use is a part of the  alleged infringement claim. As used herein, “Combination Use” means  use of the Software or Company materials in combination or  conjunction with any of the following: (i) any software other than the  Software; (ii) any apparatus other than a platform or hardware  prescribed by Company as compatible for use with the Software  and/or (iii) any activity not licensed under the EULA. 
     • If an infringement or misappropriation of the intellectual property rights  of a third party by the Software in accordance with Section 7 above is  alleged or, in the reasonable opinion of Company, an infringement or
2. misappropriation of the intellectual property rights of a third party is  likely to occur or be alleged, Company may, at its discretion:
   • procure the continued right to use the Software at no additional  charges to you, or
   • modify the Software or substitute alternative substantially equivalent  non-infringing programs and supporting documentation for the  Software, or
   • if none of the foregoing alternatives can be achieved at a  reasonable cost, Company may terminate the Agreement and  refund the License Fee after deducting five percent (5%) per month  of the total license fee amount for the number of months the  Software is used, provided however such refund shall not exceed  the total License Fee paid for the applicable Software. 
3. Notwithstanding the foregoing, Company shall not be liable or  obligated to indemnify you to the extent the claim would not have  arisen but for your negligent or wrongful act or omission. 
4. THE PROVISIONS OF SECTION 7(a) TO SECTION 7(c) STATE THE  SOLE, EXCLUSIVE AND ENTIRE LIABILITY AND OBLIGATION OF  COMPANY TO YOU, AND YOUR SOLE REMEDY WITH RESPECT  TO ANY CLAIMS OF INFRINGEMENT OF THIRD PARTY  INTELLECTUAL PROPERTY RIGHTS THAT MAY ARISE RELATED  IN ANY WAY TO THE SOFTWARE OR DOCUMENTATION. The  liability limitations contained in Section 8 below shall apply to all claims  made under Section 7. 

8. Limitation of Liability.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT  OR ELSEWHERE, UNDER NO CIRCUMSTANCES SHALL THE COMPANY OR  ITS LICENSORS OR AGENTS BE LIABLE TO YOU, OR ANY OTHER PERSON

OR ENTITY FOR AN AMOUNT OF DAMAGES IN EXCESS OF THE TOTAL  AMOUNT PAID BY YOU TO COMPANY FOR THE SOFTWARE DIRECTLY  CAUSING THE LIABILITY DURING THE TWELVE MONTH PERIOD  IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM, AND  UNDER NO CIRCUMSTANCES THE AGGREGATE FOR ALL CLAIMS TO  EXCEED AN AMOUNT PAID TO COMPANY FOR THE PRECEDING TWO  YEARS. 

IN NO EVENT WILL COMPANY, ITS EMPLOYEES, CONTRACTORS, AGENTS  OR DISTRIBUTORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL,  PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF GOODWILL OR  BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE  OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR  LOSS, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT,  NEGLIGENCE OR OTHERWISE, AND REGARDLESS OF WHETHER COMPANY  HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES AND EVEN  IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS  ESSENTIAL PURPOSE, INCLUDING WITHOUT LIMITATION, THE USE OR  INABILITY TO USE THE SOFTWARE, OR ANY RESULTS OBTAINED FROM OR  THROUGH THE SOFTWARE. COMPANY WILL NOT BE LIABLE FOR ANY  HARDWARE OR PLATFORM OR NETWORK-RELATED PROBLEMS  ATTRIBUTABLE TO THE SOFTWARE OR CHANGES TO HARDWARE OR  PLATFORM OR NETWORK CONFIGURATION THAT MAY AFFECT THE  PERFORMANCE OF THE SOFTWARE AND FOR THE DELAY IN DELIVERY,  INSTALLATION OR FURNISHING OF LICENSED MATERIAL OR SERVICES  UNDER THIS AGREEMENT.

IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY  PROVISION OF THIS EULA WHICH PROVIDES FOR A LIMITATION OF  LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, IS  INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY  OTHER PROVISION AND TO BE ENFORCED AS SUCH.

9. Third Party Software

Third party software has been supplied with Smarten Insights under specific license  agreements. Detailed information about the license of these software is available in  the notice.txt file in the documents folder of Smarten Insights. These software and license  agreement may change with upgrades. Software distributed under these License is  distributed on an “as is” basis, without warranties or conditions of any kind, either  express or implied. The license agreement of these software are independent of  this agreement.

10.Maintenance and Support Program

1. You shall subscribe to Company’s annual Maintenance and Support  Program whereby Company shall provide maintenance, support and  enhancements in connection with the Software. Please contact the  Company to subscribe to Maintenance and Support Program or should  you have any questions concerning the Maintenance and Support  Program. 
2. Annual Maintenance and Support Program entitles you to future releases  of the Software. Notwithstanding the other provisions of the Agreement,  Company shall not be expected to support any previous version of the  Software or ensure that the Software is compatible with the third party  products or software. 
   • Subscribing to Maintenance and Support Program does not guarantee  automatic Software updates. You agree to install the latest Software  update available from Company, when required, as a condition of  Company providing support services. Company reserves the right to  terminate your subscription to Maintenance and Support Program  anytime without notice should Company, in its sole discretion, determine  that continued support for the Software is no longer economically
3. practicable and/or in the event that the Software has become inoperable  or incompatible with current operating systems, hardware, or other  technologies. Maintenance and support services under this agreement  extend only to the Software free of any modifications and such services  shall be rendered by Company from its location in Ahmedabad, India and  not onsite. 
4. Maintenance and support services do not include and Company shall not  be liable for hardware, vendor operating systems and other system  software, any software developed by you, and third-party software. Also,  maintenance and support services are conditioned upon provision by you  to Company of reasonable appropriate access to the system(s) using the  Software, including, but not limited to passwords, system data, file  transfer capabilities, and remote log-in-capabilities. Company shall  maintain security of the system and use such access only for the  purposes of this Agreement and will comply with your standard security  procedures.
5. In addition to this, the Company may provide training and consulting  services at locations and for price and terms as the Company may deem  fit.

11.Indemnification by You

You hereby agree that you shall fully indemnify and completely save harmless  Company and any of its directors, officers, employees, agents, representatives of  and from any and all liabilities, claims, expenses, damages, costs including  reasonable legal fees and disbursements arising out of any claims or suits for  damage or injury to person in connection with, directly or indirectly, in whole or in  part, (i) any negligent act or omission of your employees, agents, contractors,  directors, officers or any person for whom you have a legal responsibility or (ii) your  failure to comply with any applicable law or (iii) any breach by you of this EULA or  any act or omission which is, or can be determined to be, a breach of any term or

condition of this Agreement; or (iv) any infringement of intellectual property rights of  third parties caused by any use of the Software not in accordance with this EULA.

12.General.

1. Governing Law and Arbitration. This Agreement will be governed by  and construed in accordance with the laws of the India without reference  to its conflicts of law principles and subject to the arbitration provisions of  provided under this Section 12(a), the courts at Ahmedabad, India shall  have exclusive jurisdiction. If any dispute or difference shall arise  between you and Company as to the interpretation of this Agreement or any terms hereof or as to your or Company’s rights, duties or liabilities  hereunder or as to any act, matter or thing arising out of or relating to or  under this Agreement, the same shall be referred to the decision of a  sole Arbitrator appointed by Company, who shall act as the presiding  arbitrator under the provisions of the Indian Arbitration and Conciliation  Act, 1996 and the proceedings shall be subject to the Indian Arbitration  and Conciliation Act, 1996. You shall have no objection, whatsoever, to  the choice of sole Arbitrator as appointed by Company. The venue of  arbitration shall be Ahmedabad. 
2. Publicity Rights. You expressly grant Company the right to include you  as a customer on Company’s website or other promotional material in  relation to the Software for marketing purposes. You can deny Company  this right at any time by submitting a written notice, requesting to be  excluded from promotional material. Upon receipt of such notice,  Company will remove any reference to you from such promotional  material within thirty (30) days and make no further reference to you.
3. Non-Solicitation. During the Term of this Agreement and for a period of  two (2) years thereafter, you will not, and will ensure that your affiliates/  associates will not, directly or indirectly: (i) solicit for employment or for  performance of any services any person employed by Company or (ii)  hire or engage for any services any person employed by Company. Breach of this clause will constitute a material breach of this Agreement  and apart from the consequences laid out in this Agreement, additionally  you shall pay Company such compensation as may be agreed with  Company to be fair and reasonable compensation for Company.
4. No Waiver. The failure by any party to exercise any right provided for  herein shall not be deemed a waiver of any right hereunder.
5. Effect of Termination. Sections 7 (Limited Warranty), 8 (Limitation of  Liability), 12(a) (Governing Law and Arbitration), and this Section 12 shall  survive the expiration or termination of this Agreement.
6. Entire agreement; Modifications. This Agreement constitutes the entire  agreement between you and Company with respect to the subject matter  hereof, and supersedes all proposals, oral or written, and all other  communications between the parties with respect to such subject matter.  This Agreement shall not be modified, except by written agreement  signed by the parties hereto.
7. Force Majeure. Company shall not be liable for and shall be excused  from any failure to deliver or perform or for delay in delivery or  performance due to causes beyond its reasonable control, including but  not limited to, work stoppages, shortages, civil disturbances, terrorist  actions, transportation problems, interruptions of power or  communications, failure of suppliers or subcontractors, war, invasion, act  of foreign enemies, hostilities (whether war is declared or not), civil war,  rebellion, revolution, insurrection, military or usurped power or  confiscation, nationalization, government sanction, blockage, embargo,  labour dispute, strike or lockout, natural disasters or other acts of nature.
8. Refund Policy. By using our SaaS product, you acknowledge and agree that all sales are final and we do not offer refunds. We are not responsible for any loss or damage that may occur as a result of using our product, and we reserve the right to modify, suspend, or discontinue our services at any time without liability to you.

Please contact the Company should you have any questions concerning this  Agreement or wish to provide notice to Company. 

Elegant MicroWeb Technologies Pvt. Ltd.

www.smarteninsights.com