Term of Use
 
This Software License and Services Agreement ("Agreement") is entered into and effective as of today ("Effective Date") by and between Ryatech Software Pvt. Ltd (hereinafter also referred as �Ryatech Software�) on behalf of MTNL. and the Licensee. The Licensee certifies that Licensee is authorized to accept this Agreement as an individual and/or on behalf of the organization to whom the Access Code was issued.
 
  1. License.
    Subject to the terms and conditions of this Agreement and upon acceptance of this Agreement by Ryatech Software, Ryatech Software hereby grants Licensee a non-exclusive, non-transferable, non-assignable license (the "License") to use the object code and documentation for the software program ( hereinafter also referred as "Software") for Licensee's own data processing operations.

  2. Delivery.
    Ryatech will deliver to Licensee software access code ("Access Code") which allows the user to download the Software, upon acceptance by Licensee.

  3. Restrictions on Use.
    Licensee's use of the Software is subject to the following restrictions: (a) all titles, trademarks, and copyright and restricted rights notices shall be reproduced in any copy of the Software; (b) no product identification, copyright notices, or other notices or proprietary restrictions may be removed from the Software; (c) all copies are subject to the terms of this Agreement; (d) Licensee shall not cause or permit reverse engineering, disassembly, or decompilation of the Software, except to the extent the foregoing restriction is expressly forbidden by applicable law; (e) the Software shall not be used for commercial timesharing, rental, or service bureau use; (f) Licensee shall not transfer, sell, lease, assign, distribute, or otherwise convey the Software to another party without the prior written consent of Ryatech Software; (g) Licensee shall not disclose the results of any benchmark tests of the Software to any third party without the prior written consent of Ryatech Software (h)Ryatech Software may terminate Licensee's use of the Software if Licensee fails to comply with any of the terms and conditions of this Agreement; (i) the Software and any documentation accompanying it that is or may be provided to the Indian Government is provided with the commercial license rights and restrictions described elsewhere herein. All rights not expressly granted are reserved.

  4. Ownership of Software.
    Ryatech Software or its licensors own and shall retain all proprietary rights, including all copyright, patent, trade secret, trademark and all other intellectual property rights, in and to the Software and accompanying documentation, including without limitation any and all updates, upgrades, corrections, bug fixes, enhancements, or other modifications to the Software. Licensee acknowledges that the licenses granted under this Agreement do not provide Licensee with title to or ownership of the Software, but only a right of limited use under the terms and conditions of this Agreement. Licensee shall keep the Software free and clear of all claims, liens and encumbrances.

  5. Maintenance Services.
    The terms and conditions governing Software maintenance services are set forth in Schedule A.

  6. Confidentiality.
    Licensee agrees that at all times during the term of this Agreement, and for three (3) years thereafter, Licensee will hold in strictest confidence, and will not use or disclose to any third party, any confidential information of Ryatech Software. The term "confidential information of Ryatech Software" shall mean all non-public information that Ryatech Software designates as being confidential, or which, under the circumstances of disclosure ought to be treated as confidential. "Confidential information of Ryatech Software" includes, without limitation, the existence, terms, and conditions of this Agreement, the Software and all non-public associated materials, information relating to released or unreleased �Ryatech Software� software or hardware products, business policies or practices of Ryatech Software, or Licensees or suppliers of Ryatech Software, or information received from others that Ryatech Software is obligated to treat as confidential. If Licensee has any questions as to what comprises such confidential information, Licensee agrees to consult with Ryatech Software. "Confidential information of Ryatech Software" shall not include information that was known to Licensee prior to Ryatech Software's disclosure to Licensee, becomes publicly available through no fault of Licensee, was independently developed by Licensee without reference to any confidential information of Ryatech Software or was disclosed to Licensee by a third party without any violation of any duty of confidentiality or any continuing obligation of confidentiality.

  7. Audit.
    At any time during the term of this Agreement, Ryatech Software shall be permitted reasonable access to (a) the books and records of Licensee pertaining to its use of the Software and (b) any premises of Licensee in order to examine any component of equipment and software used for the purposes of this Agreement and observe the use of the Software, but solely to monitor compliance with this Agreement. Ryatech Software agrees to provide reasonable prior notice and shall not audit more than once per year. If Ryatech Software notifies Licensee that it has determined in its sole discretion that Licensee has used the Software at a usage level in excess of the usage level permitted herein, Licensee shall pay any additional License Fee(s) plus interest at the then applicable Ryatech Software list price that would have been payable by Licensee in respect of Licensee's use had it been authorized.

  8. RELEASE OF INFORMATION.
    Licensee give Ryatech the right to obtain and record information pertaining to Licensee�s system configuration (for example, but not limited to, Licensee�s system's available memory, processing speed, RAM, type of operating system, folders and files list and their content, type of mail server, client version) for use by Ryatech in support related issues. This information is for Ryatech's limited use on support matters only and will not be distributed or marketed to any 3rd parties.

  9. USER ID.
    Licensee will choose or be given all applicable user names and passwords to use in connection with the use of the software. Licensee is/are entirely responsible for maintaining the confidentiality of Licensee�s passwords, user names, and account (including, if applicable, the passwords and accounts of each user accessing the services offered by the use of the said software by means of an account established by Licensee). Licensee is/are entirely responsible for any and all activities that occur under Licensee�s account, including, if applicable, the accounts of each user accessing the Service by means of an account established by Licensee.

  10. ACCOUNT INFORMATION.
    All data submitted or transmitted by or to Licensee through the services offered by the use of the said software, whether sent by Licensee or by third parties, shall remain the sole property of Licensee or such third parties, as applicable, unless specifically notified in advance. Licensee shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all such data. Ryatech is not responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any such data.

  11. LIMITATIONS ON USE.
    Licensee may not redistribute the Software or provide others with access to the services offered by the use of the said software unless otherwise approved by Ryatech. Licensee may not create or use any software other than the Software provided by Ryatech to access the Service. Licensee may not modify, reverse engineer, decompile, or disassemble the Software. Licensee may not adapt, alter, modify, translate, or create derivative works of the Software without written authorization of Ryatech. Finally, Licensee may not authorize or assist any third party to do any of the things described in this paragraph. The Software may contain licensed code from 3rd party providers. To the extent any 3rd party code is contained in the Software, it is subject to the same terms as this Agreement, and such code may only be used with the Software.

  12. Termination.
    Either party may terminate this Agreement if the breaching party fails to cure any material breach of this Agreement within ten (10) days of receiving notice of such breach from the non-breaching party. Upon such termination, all of Licensee's right to use the Software shall immediately cease and Licensee shall promptly return to Ryatech Software or destroy all copies of the Software and documentation. In addition, Ryatech Software shall have the right at its discretion to terminate Licensee's right to use those portions of the Software owned by such party at any time if Licensee fails to comply with any of the terms or conditions of this Agreement. Upon expiration or termination of the License, for any reason, with respect to all or any portion of the Software, Licensee must destroy all copies of the relevant portion(s) of the Software. Clauses 4, 6 and 12 through 18 shall survive termination or expiration of this Agreement. In addition, any obligation to pay fees will survive termination of the Agreement.

  13. REPRESENTATION AND WARRANTY.
    1. The Licensee represents and warrant that he/they will not use the software for transferring and/or receiving through any medium including mobile phones, any data including but not limited to music, song, video clips, still photographs etc., which are prohibited under the Copyright Act 1957 and other prevailing laws of India. Further, India being signatory to the International Copyright Order 1999, works protected internationally are also protected under the Copyright Act 1957 and Licensee agrees and undertakes that he/she/it will not indulge in any activity which may constitute the infringement of said international works. Licensee shall not transmit any material that contains a virus or corrupted data.
    2. Ryatech Software and its suppliers disclaim all warranties and conditions, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Ryatech Software does not warrant that the software or the services will meet licensee's requirements, that the operation of the software and/or services will be uninterrupted or error-free, that defects in the software can be corrected or that delivery of the software will be free of any virus, worm or other disruptive device.

  14. LIMITATION OF LIABILITY.
    The entire liability of Ryatech Software, its suppliers, and licensee's exclusive remedy under this agreement shall not exceed the fees paid by licensee under this agreement. In no event shall Ryatech Software, or its suppliers, be liable for any direct, indirect, special, incidental, exemplary, punitive, or consequential damages whatsoever (including, without limitation, damages for loss of profits, revenue, data, or data use, business interruption, procurement of substitute goods or services, or any other pecuniary loss) however caused and on any theory of liability, whether in contract, strict liability, or tort (including negligence or otherwise) arising in any way out of the delivery, use of or inability to use the software and services, even if Ryatech Software or its suppliers, has been advised of the possibility of such damages.

  15. Intellectual Property and Indemnification.
    A. Ryatech Software shall defend or settle at its own expense and hold Licensee harmless from and against any claim by a third party that the Software infringes any Indian patent, trade secret or copyright of that third party, and will pay such damages or costs as are finally awarded against Licensee attributable to such claim, provided that: (a) Ryatech Software is notified of the claim immediately; (b) Ryatech Software has sole control over the defense and all negotiations for a compromise or settlement; (c) Licensee cooperates so that Ryatech Software can fulfill its obligations hereunder. This obligation of Ryatech Software does not apply to Software or portions or components thereof: (a) not supplied by Ryatech Software; (b) used in a manner not expressly documented by this Agreement (c) made in part or in whole in accordance with Licensee's specifications; (d) modified by Licensee, if the alleged infringement related to such modification; (e) combined with other products (hardware or software), processes or materials where alleged infringement would not exist but for such combination; or (f) where Licensee continues the allegedly infringing activity after being notified thereof and provided modifications that would have avoided the alleged infringement. In the event the Software is held by a court of competent jurisdiction to constitute an infringement and use of the Software is enjoined, Ryatech Software shall, at its sole option, do one of the following: (a) procure for Licensee the right to continue use of the Software: (b) provide a modification to the Software so that its use becomes non-infringing; (c) replace the Software with software which is substantially similar in functionality and performance; or (d) if none of the foregoing alternative is reasonably available to Ryatech Software, Ryatech Software shall refund the residual value of the License fees paid by Licensee at a three year amortized rate beginning on the Effective Date.
    B. Licensee shall defend or settle at its own expense and hold Licensor harmless from and against any claim by a third party that the data including but not limited to music, song, video clips, still photographs etc transferred and/or received through any medium including mobile phones, using Ryatech software infringes any Indian patent, trade secret or copyright of that third party, and will pay such damages or costs as are finally awarded against the Licensee attributable to such claim. The Licensee further undertakes to indemnify Ryatech of all claims made by any third party because of the abovesaid acts of the Licensee.

  16. Export Administration.
    Licensee shall comply fully with all laws and regulations of the Indian Government and other countries ("Export Laws") to ensure that neither the Software, nor any direct products thereof, are (a) exported, directly or indirectly, in violation of Export Laws, or (b) are used for any purpose prohibited by Export Laws, including, without limitation, for the development, design, manufacture, or production of nuclear, chemical, or biological weapons of mass destruction.

  17. Non-assignability.
    Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Licensee, and any such attempted assignment or transfer shall be void and without effect. Notwithstanding the foregoing and anything to the contrary otherwise set forth in this Agreement, Ryatech Software may assign this Agreement and it will be binding upon the parties and their respective legal successors and permitted assigns.

  18. Governing Law; Attorneys' Fees.
    Except as otherwise specifically provided herein to the contrary, this Agreement shall be construed and controlled by the laws of the Indian Government without regard to its conflicts of laws provisions, and both parties consent to the jurisdiction and venue of the state and federal courts in the Gurgaon, Haryana. In any action to enforce this Agreement the prevailing party (as specifically determined by the court) will be entitled to recover its costs, including reasonable attorneys' fees

  19. Notice.
    Any notice, approval, or consent required or permitted hereunder shall be in writing and will be deemed to have been effectively given: (a) one (1) day after deposit with a commercial overnight courier with tracking capabilities, or (b) three (3) days after deposit with the Indian Government Postal Service, by registered or certified mail, postage prepaid. The notice address for each party is set out on the Order Form. Notice addresses may be changed by giving notice in accordance with this Clause

  20. Waiver; Severability; Beneficiary
    The waiver by either party of a breach of this Agreement or any right hereunder shall not constitute a waiver of any subsequent breach of this Agreement; nor shall any delay by either party to exercise any right under this Agreement operate as a waiver of any such right. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be modified to the minimum extent necessary to achieve the purpose originally intended, if possible, and the remaining provisions of this Agreement shall remain in full force and effect and enforceable.

  21. Entire Agreement.
    This Agreement, including the Schedules attached, constitutes the entire agreement between the parties related to the subject matter hereof, and supersedes any and all other written or oral agreements. Any modifications of this Agreement must be in writing and signed by both parties and in such case will supersede this Agreement.

  22. FORCE MAJEURE
    Ryatech software�s performance under this Agreement is subject to interruption and delay due to causes beyond its reasonable control such as acts of God, acts of any Government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, failure of the Internet and other networks beyond the reasonable control of Ryatech, equipment failure, industrial or labour dispute, inability to obtain essential supplies and the like.
 
 
Schedule A
 
Maintenance Services
  1. Maintenance Services. Subject to payment of the annual maintenance fee set forth in the Order Form, Ryatech Software will provide Licensee with the following maintenance services ("Maintenance Services") for the term of this Agreement:

    1. Help Desk Support. Ryatech Software will provide telephone and e-mail support during Ryatech Software's standard support department operating hours and will use commercially reasonable efforts to provide answers to Licensee's questions about the operation of the Software.
    2. Updates. Licensee will receive free of charge any updates of the Software that Ryatech Software makes generally available to its Licensees during the maintenance period. Updates may add features or functions to the Software or enhance the general operation of the Software. Except as otherwise agreed by the parties in writing, all updates and any other code and related materials provided to Licensee by Ryatech Software will be deemed to be part of the Software for purposes of this Agreement. Updates do not include any releases or future products that Ryatech Software licenses separately.

  2. Maintenance Exclusions: Should Licensee alter the Software in any manner without Ryatech Software's consent, or otherwise materially breach the terms of this Agreement, Ryatech Software's obligation to provide the Maintenance Services described herein will immediately cease. "

 
 
 

 
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