IMPORTANT: PLEASE READ BEFORE INSTALLATION OR USE OF THE DLTK.AI (“LICENSOR”) SOFTWARE. YOU HAVE PURCHASED A LICENSE TO (“SOFTWARE”). BY INSTALLING OR IN ANY WAY USING THE SOFTWARE, THE ENTITY OR COMPANY THAT YOU REPRESENT (“LICENSEE”) IS UNCONDITIONALLY CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS LICENSE AGREEMENT (“AGREEMENT”) WITH LICENSOR. IF LICENSEE DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, INSTALLATION OR USE SOFTWARE IS STRICTLY PROHIBITED. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. IN THE EVENT THERE IS A SEPARATELY NEGOTIATED AND EXECUTED MASTER SERVICES AGREEMENT BETWEEN LICENSOR AND LICENSEE WITH RESPECT TO PROCUREMENT OF THE SOFTWARE, SUCH AGREEMENT SHALL CONTROL AND THIS AGREEMENT WILL NOT APPLY.
1. LICENSE GRANT. Subject to the terms of this Agreement, Licensor hereby grants Licensee a limited, personal, non-sublicensable, non-transferable, nonexclusive license to use the Software (in object code form only) only for Licensee’s internal use for the purpose for which it is provided and only in accordance with any Licensor-provided documentation (including as provided electronically). The Software may be accessed by the number of users agreed to by the Licensor and Licensee during the purchase process (e.g. on an order form). Such users will be specific individuals named by Licensee during the purchase process, or subsequently, in writing (email is sufficient). Once such named individuals are selected by Licensee – they may be changed only on written notice to Licensor (email is sufficient). The named individuals will not allow any other Licensee personnel to use their Software log-in credentials (passwords, etc.). No source code will be provided. To the extent the Software is provided for no charge or on an evaluation basis (in either case, “Evaluation Basis”), this Agreement may be terminated by Licensor at any time, for any or no reason, on five (5) days written notice. Licensee acknowledges that other sections of this Agreement contain terms and conditions specific to services provided on an Evaluation Basis. In the event Licensee purchases additional modules or add-ons to Software (including, without limitation, any features or functions that DLTK charges other customers for), they will be deemed “Software” and, therefore, subject to this Agreement (unless Licensor provides them pursuant to different terms and conditions). With respect to any Licensee proposed modifications, derivatives, enhancements or improvements to the Software (“Feedback”), Licensee hereby grants DLTK.ai a perpetual, irrevocable, royalty free, fully paid-up, sub-licensable, right and license to use, display, reproduce, distribute and otherwise fully exploit such Feedback for any purposes. All Feedback is provided by Licensee “AS IS”.
2.LICENSE RESTRICTIONS. Except as expressly and unambiguously permitted by this Agreement, Licensee shall not, nor permit anyone else to, directly or indirectly: (i) copy, modify, resell or distribute the Software; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Software (except the foregoing will not apply to the extent prohibited by applicable local law); (iii) rent, lease, or use the Software for time sharing or service bureau purposes, or otherwise use the Software on behalf of any third party; (iv) use the Software to develop any other product or services whether delivered internally or as an external service offering or (v) use the Software for performing comparisons or other “benchmarking” activities, either alone or in connection with any other software (and Licensee will not publish or disclose any such performance information or comparisons). Licensee shall maintain and not remove or obscure any proprietary notices on or in the Software. As between the parties, title, ownership rights, and intellectual property rights in and to the Software, and any copies or portions thereof, shall remain in Licensor and its suppliers or licensors. Licensee understands that Licensor may modify or discontinue offering the Software at any time (provided that, if Licensee has purchased a term-based license – such discontinuance will only take place at the end of the then-current term). The Software is protected by the copyright laws and treaties. This Agreement does not give Licensee any rights not expressly granted herein. On ten (10) days notice, Licensor shall have the right to (itself or through a designated third party) audit Licensee’s facilities, networks, systems, books and records to confirm Licensee’s use of the Software is in accordance with the terms and conditions of this Agreement. Licensee will fully cooperate and assist with such audits.
3.SUPPORT AND UPGRADES. During the term of this Agreement Licensor will provide Licensee with Software support according to Licensor’s general support practices and procedures. Licensee acknowledges that the Software contains features that allow Licensor to remotely and automatically identify, track and analyze certain aspects of use and performance of Software and/or the systems on which it is installed, as well as the operator and operating environment (including problems and issues that arise in connection therewith).
4.FEES. To the extent the Software is procured via a reseller – and Licensee pays such reseller for the Software – Licensee will not owe fees directly to Licensor hereunder. With respect to any other procurement of the Software, Licensee shall pay Licensor (or its applicable authorized reseller) the fees (if any) for the Software as agree to by the parties in writing at the time of purchase. Such fees are payable within thirty (30) days from the date of invoice , are non-refundable and payable in US dollars. Licensee shall also pay all sales, use, value-added and other taxes, tariffs and duties of any type assessed against Licensor except for taxes on Licensor’s income. Late fees will be subject to a finance charge of the lesser of (i) 1.5% per thirty (30) day period and (ii) the greatest amount allowed by applicable law.
5.INDEMNITY. Licensee shall indemnify and hold harmless Licensor from any claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from Licensee’s use of the Software as well as from Licensee’s negligence, willful misconduct or failure to comply with any term of this Agreement.
6.LIMITED WARRANTY. Licensor warrants to Licensee that all Software will conform materially with the Documentation. In the event of a breach of this Section, Licensee’s sole remedy, and Licensor’s exclusive liability, shall be for DLTK to use commercially reasonable efforts to correct any such defect(s); provided that, Licensee specifically notifies Licensor in writing of the defect(s) within thirty (30) days form the date Licensee first experiences the defect. Such corrections will be in accordance with Licensor’s standard practices (such as release cycles) that it provides to its other general customers. This Section 6 will not apply to Software provided on an evaluation basis (or any other no-fee basis).
7.WARRANTY DISCLAIMER. Except As Expressly Set Forth In Section 6, Licensor And Its Suppliers Provide The Software “As Is” And Without Warranty Of Any Kind, And Hereby Disclaims All Express Or Implied Warranties, Including Without Limitation Warranties Of Merchantability, Fitness For A Particular Purpose, Performance, Accuracy, Reliability, And Non-Infringement. This Disclaimer Of Warranty Constitutes An Essential Part Of This Agreement. Some States Do Not Allow Limitations On How Long An Implied Warranty Last So The Foregoing Limitations May Not Apply To Licensee. Notwithstanding Any Of The Foregoing (Including Section 6) – No Warranties Of Any Kind Are Made With Respect To Software Provided On An Evaluation Basis).
8.LIMITATION OF LIABILITY. Under No Circumstances And Under No Legal Theory, Including, But Not Limited To, Tort, Contract, Negligence, Strict Liability, Or Otherwise, Shall Licensor Or Its Suppliers Or Resellers Be Liable To Licensee Or Any Other Person In Connection With The Software Or Any Other Subject Matter Of This Agreement For Any: (I) Indirect, Special, Incidental, Or Consequential Damages Of Any Character Including, Without Limitation, Damages For Lost Profits, Loss Of Goodwill, Work Stoppage, Accuracy Of Results, Computer Failure Or Malfunction, (Ii) Any Amounts In The Aggregate In Excess Of The Fees Paid By Licensee Hereunder During The Twelve (12) Month Period Prior To The Date The Cause Of Action Accrues (But If No Fees Have Been Paid, Such As For Software Provided On An Evaluation Basis, The Damages Cap Will Be Us$1,000.00), (Iii) The Cost Of Procurement Of Substitute Software Or (Iv) Matters Beyond Its Reasonable Control. The Foregoing Limitations Shall Apply Even If Licensor Shall Have Been Informed Of The Possibility Of Such Damages. Some States Do Not Allow The Exclusion Or Limitation Of Incidental Or Consequential Damages, So The Above Limitation And Exclusion May Not Apply To Licensee.
9.TERM AND TERMINATION. This Agreement is effective as of the Effective Date and, unless otherwise agreed to by the parties in writing, will have the initial subscription term of one (1) year. Thereafter, it will automatically renew for successive renewal subscription terms of equal length to its initial subscription term, unless either party provides the other party with written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current subscription term. The initial subscription term and all renewals are referred to collectively as the “Subscription Term”. Notwithstanding the foregoing, Software provided on an Evaluation Basis will, unless otherwise agreed in writing, have a term of thirty (30) days. In addition, either party may terminate this Agreement on written notice if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice (ten (10) days in the case of non-payment or in the event Licensee breaches any license or use restrictions); (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within ninety (90) days thereafter). With respect to Customer’s breach of its payment obligations, or any license or use restrictions, electronic notice to Customer is sufficient hereunder. Any termination of this Agreement shall also terminate the licenses granted hereunder. Upon termination of this Agreement for any reason, Licensee shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Software, and shall, if requested by Licensor, so certify to Licensor in writing that such actions have occurred. Sections 2 and 4 through 14, and all accrued rights to payment, shall survive termination of this Agreement.
a. You agree, accept, and acknowledge:
i. That you are solely responsible for the configuration of the software, settings, and the actions or inactions that result from such actions and DLTK shall not have and shall assume no liability/responsibility in any case and the Clause of Indemnification shall be applicable.
ii. That DLTK shall not have and shall assume no liability/responsibility for any data deletion, including but not limited to any deletion/loss of personal, and/or confidential data; and/or uninstallation of third-party apps; and/or change in settings; specifically authorized by you or occurs due to the actions, inactions (whether intentional or not) by you or any third party whom you have authorized to use, handle your device due to features of this software.
iii. That to avail/use certain features of the software such as updates and upgrades, you may be required to incur certain costs and that DLTK does not warrant that the usage of certain features are free of cost and that DLTK shall not entertain and expressly disclaims, any claim for reimbursement of any expenses including but not limited to any direct or incidental expenses arising out of your usage of such features of this software.
iv.That you are solely responsible and shall comply with all applicable laws, regulations of India and any applicable foreign/trans-national laws including without limitation, privacy, data protection, obscenity, confidentiality, copyright laws for using any report, data, information derived as a result of using this software.
v. That while using this platform, DLTK suggests some actions to be initiated by you in your sole benefit, for example “DLTK may suggest you to install python libraries for your device”, however such actions are suggestive and DLTK takes no responsibility/liability if you perform such suggestive actions or not and DLTK assumes no responsibility/liability for any result or liability arising out of such actions/inactions.
11.NOTICE Any notice or communication required or permitted under this Agreement shall be in writing to the parties at: (i) if to Licensee, the address listed by Licensee during the Software registration process (or as otherwise provided by Licensee) and (ii) if to Licensor, DLTK.ai, Inc. Attn: Contract Administration (or at such other address as may be given by Licensor at any time) – and shall be deemed to have been received by the addressee (iii) if given by hand, immediately upon receipt; (iv) if given by overnight courier service, the first business day following dispatch or (v) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, to be effective, legal notices to Licensor (such as for breach) must also be provided in email to: email@example.com (subject heading: Attn: Legal Notice) (but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in the preceding sentence). Notwithstanding the foregoing, an electronic notice to Licensee (such as via email) is sufficient to the extent related to breach or termination.
12.LOGO USAGE During the term of this Agreement and for a reasonable wind-down period thereafter, Licensor may use Licensee’s name and logo on its website and in marketing materials as part of a general list of customers.
13.MISCELLANEOUS. The Licensor shall have the right to inspect and audit Licensee’s facilities to confirm Licensee’s compliance with this Agreement. This Agreement represents the complete agreement concerning the Software between the parties, to the exclusion of any pre-printed or contrary terms of any Licensee purchase order (or similar document), and supersedes all prior agreements and representations between them; provided, however, that if there is already a mutually signed agreement between Licensor and Licensee (not including any Licensee purchase order or similar document) covering Licensee’s purchase of a license to use the Software, then the express terms of that signed agreement will govern to the extent they are expressly contrary to this Agreement. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Licensor to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit the Licensor’s rights with respect to such breach or any subsequent breaches. This Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever without Licensor’s consent and any action or conduct in violation of the foregoing shall be void and without effect. Licensor expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder.
14.General Any notice or communication required or permitted under this Agreement shall be in writing to the parties at: (i) if to Licensee, the address listed by Licensee during the Software registration process (or as otherwise provided by Licensee) and (ii) if to Licensor, DLTK.ai, Inc. Attn: Contract Administration (or at such other address as may be given by Licensor at any time) – and shall be deemed to have been received by the addressee (iii) if given by hand, immediately upon receipt; (iv) if given by overnight courier service, the first business day following dispatch or (v) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, to be effective, legal notices to Licensor (such as for breach) must also be provided in email to: firstname.lastname@example.org (subject heading: Attn: Legal Notice) (but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in the preceding sentence). Notwithstanding the foregoing, an electronic notice to Licensee (such as via email) is sufficient to the extent related to breach or termination.
a. Force Majeure. DLTK will not be liable for any delay or failure to fulfil its obligations hereunder that results from an act of God, war, civil disturbance, government policies, or other cause/s beyond its control. Provided that DLTK shall endeavour to complete the obligation within a reasonable period after happening of any event as covered under such force majeure.
b. Legal Jurisdiction. This agreement and any matter relating thereto shall be subject only to jurisdiction of the Courts at Hyderabad, India and shall be interpreted as per the terms of the law/s for the time being in force in India. Any dispute which may arise out of this Agreement, breach of terms and conditions under this Agreement, shall be settled by direct negotiations between you and DLTK. In the case of failure to resolve the dispute in the manner set out above within 30 days from the date when the dispute arose, the dispute shall be referred to any arbitrators appointed by DLTK. The venue of arbitration shall be Hyderabad. The arbitration proceedings shall be governed by the Arbitration and Conciliation Act, 1996 and Indian Laws and shall be conducted in the English language. The arbitrators shall also decide on the costs of the arbitration proceedings. To the extent possible, after the commencement of any arbitral proceedings, the parties thus engaged shall continue to perform their respective obligations under this Agreement. The provisions of this Clause shall survive termination of this Agreement. Subject to the provisions of this Clause, the Courts in Hyderabad, India shall have exclusive jurisdiction and the parties may pursue any remedy available to them at law or equity.
c. Complete Agreement. This Agreement comprises the entire agreement between the parties regarding the subject matter, and supersedes any proposals, communications or advertising, oral or written, with respect to the software or subject matter of this Agreement. You shall be bound by any and all clauses of the Agreement updated and displayed on the website of DLTK at www.dltk.ai from time to time. The Agreement displayed on the website will be the finally concluded and binding agreement between you and DLTK for all legal purposes which include your each activation, reactivation, and renewal of this software. In case of any dispute/queries arising out of any translated versions of this Agreement, DLTK hereby expressly specifies and confirms that the English version as displayed on the website will be final for interpretation and the terms used, meaning conveyed in the English version will be authoritative and binding. Any waiver by either party of any violation of any provision of this Agreement by the other party will not be deemed to waive any other violation of the same or any other provision.
d.Severability. If any of the provisions contained in this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, the validity, legality, or enforceability of the remaining provisions contained herein shall not be in any way affected or impaired thereby and the balance of the Agreement will continue in full force and effect to the maximum extent permitted by law or equity while preserving, to the fullest extent possible, its original intent.
e. Survival. The Clauses in this Agreement including not limited to rights to License Fees, “Indemnification”, “Limited Warranties & Disclaimers” and “Intellectual Property” shall survive expiration or termination of this Agreement.
f.Subject to certain terms mentioned in respective open source license where used by DLTK, You cannot assign your rights or delegate duties or obligations under this Agreement. The failure to exercise or delay in exercising a right or remedy by DLTK under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any prior, concurrent or subsequent right or remedy.
g.The section numbers and headings are included merely for the convenience of the parties and are not to be construed in interpreting this Agreement.
h.DLTK reserves the right to amend this End-User License Agreement from time to time and will keep updated on its website at www.dltk.ai and it would be binding on the end users. This is an essence of the agreement and use of this software.
i.DLTK reserves the right to co-operate with any legal process and may provide documents, information related to your usage of this software and your general usage of the device.