SOFTWARE LICENSE AGREEMENT
This AGREEMENT is made effective on the date of the purchase of the software between E-Startups Kenya, a company incorporated under the Companies Act, 1956 (hereinafter referred to as “Licensor”), and the purchaser of the software/product (hereinafter referred to as “Licensee”).
Preamble
Licensor is a web and mobile product-based organization engaged in the business of developing and marketing software for enterprise-level e-commerce businesses. It is an ISO certified organization having a team of more than 70 creative engineers from different backgrounds. It has developed more than 429 web extensions and apps in the past few years for open-source platforms, which are used and trusted globally. Licensee now wishes to obtain a license, and Licensor wishes to grant a license, to allow the use of the software so purchased in developing the e-commerce business website/mobile app of the Licensee, subject to the terms and conditions set forth herein.
THEREFORE, with the intent to be legally bound, the parties hereby agree as follows:
Agreement
Definitions
As used in this Agreement, the following capitalized terms shall have the definitions set forth below:
- “Derivative Works” are works developed by Licensee, its officers, agents, contractors, or employees, which are based upon, in whole or in part, the Source Code and/or the Documentation and may also be based upon and/or incorporate one or more other preexisting works of the Licensor. Derivative Works may be any improvement, revision, modification, translation (including compilation or recapitulation by computer), abridgment, condensation, expansion, or any other form in which such a preexisting work may be recast, transformed, or adapted. For purposes hereof, a Derivative Work shall also include any compilation that incorporates such a preexisting work.
- “Documentation” is written, printed, or otherwise recorded or stored (digital or paper) material relating to the Software and/or Source Code, including technical specifications and instructions for its use including Software/Source Code annotations and other descriptions of the principles of its operation and instructions for its use.
- “Improvements” shall mean, with respect to the Software, all modifications and changes made, developed, acquired, or conceived after the date hereof and during the entire term of this Agreement.
- “Source Code” is the computer programming source code form of the Software in the form maintained by the Licensor, and includes all non-third-party executables, libraries, components, and Documentation created or used in the creation, development, maintenance, and support of the Software as well as all updates, error corrections, and revisions thereto provided by Licensor, in whole or in part.
Software License
Grant of License
For the consideration set forth below, Licensor hereby grants to Licensee, and Licensee hereby accepts the worldwide, non-exclusive, perpetual, royalty-free rights and licenses set forth below:
- The right and license to use and incorporate the software, in whole or in part, to develop its website/mobile app (including the integration of all or part of the Licensor’s software into Licensee’s own software) on one domain (Except Joomla modules, listed on store are entitled to be used on unlimited domain as per the standard guidelines) only, solely for the personal or business use of the Licensee. However, the License does not authorize the Licensee to compile, copy, or distribute the said Software or its Derivative Works.
- The right and license does not authorize the Licensee to make any backup or archival copies of the Software and/or the Source Code and Documentation.
Scope
Rights and Responsibilities.
- Licensor shall enable the Licensee to download one complete copy of the Software.
2. The Software is intended for the sole use of the Licensee in the development of its own website/mobile app.
3. Licensee does not have the right to hand over, sell, distribute, sub-license, rent, lease, or lend any portion of the Software or Documentation, whether modified or unmodified, to anyone. Licensee should not place the Software on a server so that it becomes accessible via a public network such as the Internet for distribution purposes. In case the Licensee is using any source code management system like GitHub, it can use the code there only when it has a paid subscription from such management system.
4. Licensee is not authorized to appoint, or work with, third parties to perform any development services using the Source Code, the source code to Derivative Works and/or the Documentation on behalf of, or working with, the Licensee. Release of Source Code, Derivative Work source code, and/or Documentation to any third party shall be considered a violation of the Agreement, inter-alia entailing forthwith termination and legal action.
Ownership
- Software and Source Code. All rights, titles, copyrights, and interests in the Software, Source Code, Software Modifications, and Error corrections will be and remain the property of Licensor.
- Derivative Works. As creation of Derivative Works by the Licensee is prohibited, thus, all rights, titles, copyrights, and interests in any and/or all Derivative Works and Improvements created by, or on behalf of, Licensee will also be deemed to the property of Licensor. Licensor shall be entitled to protect copyright/intellectual property in all such Derivative Works and Improvements also in any country as it may deem fit including without limitation seeking copyright and/or patent protection.
Consideration
Licensee shall pay to Licensor the amount as mentioned on the website from where the order is placed, as a one-time, upfront fee in consideration for the licenses and rights granted hereunder (hereinafter referred to as the “License Fee”). The License Fee to be paid by Licensee shall be paid upfront at the time of placing the order, and no credit will be allowed under any circumstances.
Once paid, the License Fees shall be non-refundable. The Licensee has fully satisfied itself about the Software and has seen the demonstration, and only thereafter has placed the order. Thus, the License Fees or any part thereof is non-refundable. No claim for refund of the Licence Fees shall be entertained under any circumstances.
Representations and Warranties
Mutual
Each of the parties represents and warrants to the other as follows:
- Such party is a legal entity duly organized, validly existing, and in good standing;
2. Such party has the power and authority to conduct its business as presently conducted and to enter into, execute, deliver and perform this Agreement.
3. This Agreement has been duly and validly accepted by such party and constitutes the legal, valid, and binding obligations of such party respectively, enforceable against such party in accordance with their respective terms;
4. The acceptance, execution, delivery, and performance of this Agreement does not and will not violate such party’s charter or by-laws; nor require any consent, authorization, approval, exemption, or other action by any third party or governmental entity.
Licensor warrants that, at the time of purchase of the Software:
- The Software will function materially as set forth in the website or published functionality provided by Licensor to customers and potential customers describing the Software.
2. Software add-ons, if purchased by the Licensee from the Licensor, will not materially diminish the features or functions of or the specifications of the Software as they existed as of the execution of this Agreement.
Title
Licensor represents and warrants that it is the exclusive owner of all copyright/intellectual property in the Software (including the Source Code) and has good and marketable title to the Software (including the Source Code) free and clear of all liens, claims, and encumbrances of any nature whatsoever (collectively, “Liens”). Licensor’s grant of license and rights to Licensee hereunder does not, and will not infringe any third party’s property, intellectual property, or personal rights.
Term
Subject to Licensee’s payment obligations, this Agreement shall commence as on the date of making payment of the Software by the Licensee to the Licensor, and shall continue until terminated by either party.
The Licensor retains the right to terminate the license at any time if the Licensee is not abiding by any of the terms of the Agreement. The Licensee may terminate the Agreement at any time at its own discretion by uninstalling the Software and/or by destroying the said Software (or any copies thereof). However, the Licensee shall not be entitled to seek any refund of the amount paid by it to the Licensor, under any circumstances.
Survival
In the event this Agreement is terminated for any reason, the provisions set forth in Sections 2(a), 2(b), and 2(c) shall survive.
Indemnification
The Licensee releases the Licensor from, and agrees to indemnify, defend and hold harmless the Licensor (and its officers, directors, employees, agents, and Affiliates) against, any claim, loss, damage, settlement, cost, taxes, expense, or other liability (including, without limitation, attorneys’ fees) (each, a “Claim”) arising from or related to: (a) any actual or alleged breach of any obligations in this Agreement; (b) any refund, adjustment, or return of Software, (c) any claim for actual or alleged infringement of any Intellectual Property Rights made by any third party or damages related thereto; or (d) Taxes.
Limitation of Liability
The Licensor will not be liable for any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data, or other intangible losses arising out of or in connection with the Software, whether in contract, warranty, tort, etc. (including negligence, software liability, any type of civil responsibility, or other theory or otherwise) to the Licensee or any other person for the cost of software, cover, recovery, or recoupment of any investment made by the Licensee or its affiliates in connection with this Agreement, or for any other loss of profit, revenue, business, or data or punitive or consequential damages arising out
of or relating to this Agreement. Further, the aggregate liability of the Licensor, arising out of or in connection with this Agreement or the transactions contemplated hereby will not exceed at any time, or under any circumstances, the total amounts received by the Licensor from the Licensee in connection with the particular software giving rise to the claim.
Force Majeure
The Licensor will not be liable for any delay or failure to perform any of its obligations under this Agreement by reasons, events, or other matters beyond its reasonable control.
Relationship of Parties
The Licensor and Licensee are independent legal entities, and nothing in this Agreement will be construed to create a partnership, joint venture, association of persons, agency, franchise, sales representative, or employment relationship between the parties. The Licensee will have no authority to make or accept any offers or representations on behalf of the Licensor. The relationship between the parties is that of Licensor and Licensee only, and the rights, duties, and liabilities of each party shall be governed by this Agreement.
Modification
The Licensor may amend any of the terms and conditions contained in this Agreement at any time and solely at its discretion. Any changes will be effective upon the posting of such changes on the Portal/website, and the Licensee is responsible for reviewing these changes and informing itself of all applicable changes or notices. The continued use of software by the Licensee after posting of any changes by the Licensor will constitute the acceptance of such changes or modifications by the Licensee.
Miscellaneous
1. General Provisions
This Agreement:
- May be amended only by a writing signed by each of the parties.
2. May be executed in several counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.
3. Contains the entire agreement of the parties with respect to the transactions contemplated hereby and supersedes all prior written and oral agreements, and all contemporaneous oral agreements, relating to such transactions.
4. Shall be governed by, and construed and enforced in accordance with, the laws of Kenya; and (v) shall be binding upon, and inure to the benefit of, the parties and their respective successors and permitted assigns. Each of the parties hereby irrevocably submits to the jurisdiction of the Courts at Nairobi, Kenya, for the purposes of any action or proceeding arising out of or relating to this Agreement or the subject matter hereof and brought by any other party.
2.Assignment
Licensee cannot assign, pledge or otherwise transfer, whether by operation of law or otherwise, this Agreement, or any of its obligations hereunder, without the prior written consent of Licensor, which consent shall not be unreasonably withheld.
3.Notices
Unless otherwise specifically provided herein, all notices, consents, requests, demands, and other communications required or permitted hereunder:
- Shall be in writing.
- Shall be sent by messenger, certified or registered mail/email, or reliable express delivery service, to the appropriate address(es) set forth below.
- Shall be deemed to have been given on the date of receipt by the addressee, as evidenced by a receipt executed by the addressee (or a responsible person in his or her office), the records of the Party delivering such communication or a notice to the effect that such addressee refused to claim or accept such communication, if sent by messenger, mail, or express delivery service. All such communications shall be sent to the following addresses or numbers, or to such other addresses or numbers as any party may inform the others by giving five days’ prior notice: If to E-Startups Kenya:
E-Startups Kenya
64, Pioneer Building, Kimathi Street
Nairobi.
If to Licensee:
At the address mentioned by the Licensee
(at the time of placing order or generating Invoice)
4.Severability
The intent of the parties is for the provisions of this Agreement to be enforced to the fullest extent permissible under the laws and public policies of India where enforcement is sought. In support of this, each provision is severable from the others, and any unenforceable provision shall be addressed as follows:
1. If a provision conflicts with any statute, rule, or regulation, the necessary requirement shall be incorporated into or substituted for the unenforceable provision to make it enforceable to the minimum extent necessary.
2. The court, agency, or arbitrator considering the matter is authorized to amend such a provision to the minimum extent necessary to make it enforceable. If the court, agency, or arbitrator is unwilling or fails to do so, the parties shall amend the provision, and the parties consent to an order amending such provision.
3. If a provision cannot be reformed and made enforceable pursuant to the above clauses, it shall be ineffective to the minimum extent necessary to make the remainder of this Agreement enforceable. The application of the foregoing provisions to any provision shall not affect the validity or enforceability of any other provision.
By purchasing the Software, the Licensee acknowledges having read this Agreement, agreeing to its terms, and using the Software in compliance with this Agreement.
The Licensor holds the sole copyright of the Software. The Software or any portion thereof is subject to copyright protection under applicable laws. Copyright infringement can lead to prosecution under current law. The Licensor reserves the right to revoke the license of any user without a valid license.
This Agreement grants the right to use only one copy of the Software on one domain solely for the Licensee’s personal or business use, subject to the terms and conditions of this Agreement. A separate license must be purchased for each new Software installation. Any distribution of the Software without the Licensor’s written consent (including non-commercial distribution) is a violation of this Agreement, leading to immediate termination and possible civil and criminal liability.
The Licensor reserves the right to publish a selected list of users/Licensees of its Software without needing permission from any Licensee. The Licensee agrees that the Licensor may disclose or make available any information provided or submitted by the Licensee or related to it under this Agreement to any judicial, quasi-judicial, governmental, regulatory, or other authority as required by the Licensor to comply with orders, instructions, directions, or requirements under applicable laws.
If the Licensee continues to use the Software after notice of termination from the Licensor, the Licensee agrees to accept an injunction to restrain further use and to pay all costs (including reasonable attorney fees) to enforce the injunction or revoke the License, and any damages suffered by the Licensor due to misuse of the Software by the Licensee.
Arbitration
Any dispute arising between the Licensor and the Licensee regarding the validity, interpretation, implementation, or alleged breach of any provision of this Agreement shall be referred to a sole Arbitrator, an independent and neutral third party appointed exclusively by the Licensor. The Licensee shall not object to the appointment of the Arbitrator. The place of arbitration shall be Nairobi,Kenya. The Arbitration & Conciliation Act, 1996, as amended by The Arbitration & Conciliation (Amendment) Act, 2015, shall govern the arbitration proceedings, which shall be held in English.
This document is an electronic record under the Information Technology Act, 2000, and the amended provisions pertaining to electronic records in various statutes as amended by the Information Technology Act, 2000. This electronic record is generated by a computer system and does not require physical or digital signatures.