NOTICE TO USERS
THIS END USER LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN THE INDIVIDUAL, OR THE COMPANY OR OTHER ORGANIZATION ON WHOSE BEHALF SUCH INDIVIDUAL ACCEPTS THIS AGREEMENT (“YOU”, “YOUR”, “CUSTOMER”, WHICH EXPRESSION SHALL UNLESS REPUGNANT TO THE CONTEXT AND MEANING THEREOF BE DEEMED TO INCLUDE ITS SUCCESSORS AND ASSIGNS), THAT EITHER (A) CLICKS THE “I ACCEPT” OR “I AGREE” BUTTON / TAB OR (B) INSTALLS, ACCESSES, OR USES ANY SOFTWARE OR DOCUMENTATION FROM SYSTOOLS, AND SYSTOOLS SOFTWARE PRIVATE LIMITED (“SYSTOOLS”, “WE”, “OUR”, “US”, WHICH EXPRESSION SHALL UNLESS REPUGNANT TO THE CONTEXT AND MEANING THEREOF BE DEEMED TO INCLUDE ITS SUCCESSORS AND ASSIGNS).
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE ACCEPTING THIS AGREEMENT. BY CLICKING ON THE “I ACCEPT” OR “I AGREE” BUTTON / TAB OR BY INSTALLING, ACCESSING, OR USING ANY SOFTWARE OR DOCUMENTATION FROM SYSTOOLS, CUSTOMER HEREBY AGREES TO BE BOUND BY THIS AGREEMENT AND REPRESENTS THAT IT IS AUTHORIZED TO DO SO.
IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT OR IF YOU DO NOT HAVE AUTHORITY TO BIND THE COMPANY OR OTHER ORGANIZATION ON WHOSE BEHALF YOU ARE ACCEPTING THIS AGREEMENT, THEN PLEASE DO NOT CLICK ON THE “I ACCEPT” OR “I AGREE” BUTTON / TAB.
SysTools®software products have been deployed in multiple industries such as information technology, automotive, manufacturing, engineering, insurance, shared services, retail, BPO, pharmaceutical, FMCG, management consulting etc.
Customer hereby agrees to be bound by the terms of this EULA by accessing / using the Software or by availing the Support Services defined herein under. This End User License Agreement is a legally binding agreement between You and SysTools® and shall govern Your use of the Software and all successor upgrades, revisions, patches, fixes, modifications, copies, additions or maintenance releases of the Software, if any, licensed to you by SysTools®.
THE SOFTWARE MADE AVAILABLE BY SysTools® TO YOU HEREIN IS LICENSED, NOT SOLD, TO YOU. THE SOFTWARE IS DEEMED TO BE DELIVERED AND ACCEPTED BY YOU ON THE DATE IT IS MADE AVAILABLE FOR ACTIVATION. YOU SHOULD CAREFULLY READ, UNDERSTAND AND SIGN THIS AGREEMENT BEFORE DOWNLOADING, ACCESSING, ACTIVATING, INSTALLING OR USING THIS SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT THEN DO NOT COPY, DOWNLOAD, ACCESS, ACTIVATE, INSTALL OR DISTRIBUTE THE SOFTWARE. YOUR USE OF THE SOFTWARE IS CONDITIONED UPON COMPLIANCE WITH THE TERMS OF THIS AGREEMENT. IF YOU ARE SIGNING THIS AGREEMENT ON BEHALF OF ANOTHER PERSON OR END-USER, YOU REPRESENT AND WARRANT THAT YOU HAVE THE FULL AUTHORITY TO BIND THAT PERSON OR END-USER TO THIS AGREEMENT.
The parties acknowledge receipt and sufficiency of good and valuable consideration and agree as follows:
- Attachment means any written Order Form, Annexures, exhibit, statement of work, schedule, addendum, service level agreement or other similar document that is agreed to by SysTools® and referenced in this EULA, each of which are hereby incorporated by reference into this Agreement.
- Confidential Information means any information of a party (Discloser), including trade secrets and technical, financial or business information, data, ideas, concepts or know-how, that is designated as “confidential” or by similar words by the Discloser at the time of disclosure and, if oral or visual, is confirmed as confidential by the Discloser in writing within fifteen (15) days of disclosure; or the receiving party (Recipient) should reasonably have considered to be confidential under the circumstances surrounding disclosure.
- Documentation shall mean any explanatory materials, such as user manuals, training materials, product guides, product descriptions, policies, data sheets, specifications regarding the implementation and use of Software that may be provided by SysTools® with the Software.
- Fees mean all fees and expenses payable by Customer to SysTools® in licensing the Software and, as applicable, for Support Services.
- Intellectual Property Rights shall mean all worldwide intellectual property rights, including without limitation, copyrights, trademarks, service marks, trade secrets, know how, inventions, patents, patent applications, moral rights and all other proprietary rights, whether registered or unregistered, and / or any proprietary rights.
- License means the non-exclusive, non-transferable right, without any right to sub-license, to install and use a Software (in object code form).
- License Type means the License Type defined under Section 2 of this Agreement and as identified in the Order Form.
- Licensed User means an authorized user who accesses and uses the Software under this License. The number of Licensed Users under this EULA shall be decided by SysTools® based on the Fees paid by the Customer.
- Order Form means the Order Form attached as Annexure A here in under, accepted by SysTools® and Customer, which specifies the details of the Licenses granted to the Customer as per this EULA. The Order Form forms an integral part of this EULA and shall be governed by the terms of this EULA.
- Perpetual License/s means the License/s with a perpetual Term as stated in the Order Form.
- Software means the software provided as an “On-Premise” solution and related documentation that is licensed to Customer subject to the terms and conditions of this EULA and that is identified in any applicable Order Form accepted by SysTools® and the Customer.
- Start Date shall be the Start Date as specified in the Order Form.
- Subscription License/s means the License/s that are not Perpetual Licenses and are provided for a specific term stated in the Order Form.
- Support Services means the provision of Software updates and/or enhancements and technical support made generally available by SysTools® to Customers from time to time and in accordance with this EULA.
- Term means the period of time (commencing from the Start Date) set forth in an accepted Order Form, that Customer is authorized to use the Software within the scope of rights granted under this EULA.
LICENSE TYPE / LICENSE USABILITY
- Single User License (Personal License) - If You acquire Single User License, You can use the Software as set forth in the Agreement for non-commercial purposes in non-business, non-commercial environment. This License acquires the non-exclusive and non-transferable right to install and activate Software on a single computer.
- Multi-User License(Businesses / Corporate Clients/Educational Institutes/Government Organizations/Defense Establishments) - If You acquire the Business License, You may use the Software, as set forth in the Agreement, on unlimited number of computers within one office in one geographic location. To use the Software in a corporate, government or business environment globally, you should purchase an Enterprise License. If You acquirethe Enterprise License, You may use the Software, as set forth in the Agreement, on unlimited number of computers at branches of Your organization.
- Registered User License - If you acquire a Registered User License, You can use the Software, as set forth in the Agreement, for commercial purposes or in a commercial environment. This License cannot be assigned or transferred. Registered User License may only be used by a single individual without regard to how often the person uses the License. A License is required for every such individual, regardless of whether the individual is accessing the Licensed Software directly or via an intermediate application. Shared activation code or log-in accounts are not permitted for this License. The Customer cannot substitute new Registered User/s with the previous or existing users. The aggregate number of registered users shall not exceed at any point in time the number of Licenses in effect at such time for that particular Software.
- Device Based User License - If You acquire device-based user License You can use the Software, as set forth in the Agreement for commercial purposes or in a commercial environment. This License cannot be assigned or transferred. Such Licensed Software is licensed to operate solely on the designated computer on which it is installed. It is not permitted to move device-based user Licenses from one computer to another by means of installing such Software on an external, portable or removable device (e.g., USB dongle, NAS, Router, memory stick, USB drive, external hard drive) or through other means.
- Annual Subscription License - Upon SysTools® acceptance of an order for licensed Software products, SysTools® grants to Customer a license to install and use the licensed Software during the Subscription License Term of twelve (12) months, solely for Customer’s internal business purposes and solely in accordance with this Agreement.
- License Grant: - Subject to the terms and conditions of this EULA and the Order Form, SysTools® grants to Customer a limited, non-exclusive, non-sub licensable, non-transferrable, non-assignable royalty free License to install and use the Software and applicable License Type identified in the Order Form during the applicable Term, solely for Customer’s internal business purposes by Licensed Users.
- Updates and Upgrades: - All Software Updates and Upgrades provided by SysTools® will be included under the Licenses granted by the EULA. “Update” means maintenance of, or a fix to, a version of Software, including, but not limited to a hot fix, patch, or enhancement, none of which function as a standalone service or other software package and which do not have an additional cost for Customer. “Upgrade” means a major, standalone version of the Software, which may include additional applications, features, or functionality.
- Rights Reserved: - The Software is licensed, not sold. SysTools® and its licensors own the title, copyright, and other intellectual property rights in the Software. SysTools® and its licensors hereby reserve all rights not expressly granted to Customer under this EULA. Nothing in this Agreement will be construed to give Customer a right to use, or otherwise obtain access to, any source code of the Software.
Customer must pay all Fees as stated in the Order Form by their due date. Invoices shall be raised by SysTools® on or after the signing of this End-User License Agreement, or Order Form by both parties, or upon acceptance of SysTools®’ Click wrap End-User License Agreement by the Customer. Failure to pay Fees by the due date will result in the immediate termination of the Licenses and/or Support Services granted under this EULA. Invoicing and payment terms for the Software and/or Support Services shall be as per the Order Form.
Customer hereby agrees that, without the prior written consent of SysTools®, which may be withheld or conditioned at SysTools® sole discretion, Customer will not:
- Copy or use the Software in any manner except as expressly permitted in this EULA;
- Use or deploy the Software on any server in excess of the Licensed Users for which Customer has paid the applicable Fees;
- Transfer, sell, rent, lease, lend, distribute, or sublicense the Software to any third party;
- Use the Software as part of an application services provider or as a service offering primarily designed to offer the functionality of the Software;
- Reverse engineer, disassemble, or decompile the Software or derive or attempt to derive the source code of the Software;
- Alter, modify, enhance or prepare any derivative work from or of the Software;
- Alter or remove any proprietary notices in the Software;
- Emulate, copy, duplicate, replicate, clone, exploit, modify, adapt, tamper with, translate or create derivative works of the Software or the Documentation; combine or merge any part of the Software or Documentation with or into any other software or documentation; or refer to or otherwise use the Software as part of any effort to develop software (including any routine, script, code, or program) having any functional attributes, characteristics, aspects, visual expressions or other features similar to those of the Software to compete with SysTools®;
- Make available to any third party the functionality of the Software or any license keys or activation keys used in connection with the Software;
- Copy or embed elements of the Software into other applications;
- Violate or circumvent any technological restrictions within the Software;
- Publicly display or communicate the results of internal performance testing or other benchmarking or performance evaluation of the Software;
- Export the Software in violation of Indian export administration rules, any other applicable laws or regulations;
- Commit any act or omission the likely result of which is that SysTools®® or any of its third-party licensors or supplier’s reputation will be brought into disrepute or which act or omission could reasonably be expected to have or does have a material and adverse effect on SysTools® interests;
- Perform or facilitate any act which, directly or indirectly, causes to be transmitted to, uploaded or downloaded by, SysTools® or any end user, any software viruses, worms, Trojan horses, time bombs, trap doors or any other computer code, files or programs or repetitive requests for information designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to diminish the quality of, interfere with the performance of, or impair the functionality of the Software (individually and collectively, a “Virus”);
- Use the Software for any unlawful purpose;
- Permit a third party to, modify, circumvent, deactivate, degrade or thwart any software-based or hardware-based protection mechanism that SysTools® has in place to safeguard the Software; or
- Use with or distribute the Software to any person located in an Indian embargoed country and blocked persons or otherwise blacklisted by any instrumentality of India.
Any breach or suspected breach of any term or condition set forth in this paragraph will result in the immediate termination of all Licenses granted hereunder.
THIRD PARTY PRODUCTS
The Software may contain embedded third-party software components for which additional terms and conditions shall apply. Customer shall comply with all such third-party terms. Any breach by the Customer of any third-party terms also constitutes a breach of this Agreement.
CONFIDENTIALITY AND DATA PROTECTION
Recipient shall hold in confidence and use no less than reasonable care to avoid disclosure of any Confidential Information to any third party. Recipient’s non-disclosure obligation shall not apply to information which: (i) is known by Recipient without confidentiality obligations; (ii) is or has become public knowledge through no fault of Recipient; or (iii) is independently developed by Recipient. Recipient may disclose Discloser’s Confidential Information if required pursuant to a regulation, law or court order; provided that, Recipient provides prior notice to Discloser (to the extent legally permissible) and reasonably cooperates, at Discloser’s expense, regarding protective actions pursued by Discloser. Upon reasonable request of Discloser, Recipient shall either return, delete or destroy all Confidential Information of Discloser and certify the same in writing.
You acknowledge and agree that the Software was: (a) developed at considerable time and expense by SysTools® and/or its affiliates and their respective suppliers; and (b) that the Software, contains Confidential Information including the trade-secrets of SysTools® and its suppliers. This Agreement gives You no right to obtain from SysTools® or its distributors any source code for the Software.
The Software and all copies thereof are protected by copyright and other intellectual property laws and treaties. SysTools® or relevant third parties, as applicable, own the entire title, copyright, and other Intellectual Property Rights and interests in and to the Software and all subsequent copies of the Software. Your rights to use the Software and Documentation shall be limited to those expressly granted in this Agreement. No other rights with respect to the Software or any related Intellectual Property Rights are implied. You are not authorized to use (and shall not permit any third party to use) the Software, Documentation or any portion thereof except as expressly authorized by this Agreement. The Software is licensed, not sold, and Customer does not acquire any rights of ownership in the Software. Customer acknowledges the Software may contain proprietary information and trade secrets of SysTools® and/or its third-party licensors and suppliers and Customer agrees it will not take any actions inconsistent with such parties’ ownership of such information and trade secrets. Without limiting the generality of the foregoing, Customer agrees it will not directly or indirectly access or use the Software in order to build a competitive commercial product or service. Any breach or suspected breach of any term or condition set forth in this paragraph will result in the immediate termination of all Licenses granted hereunder.
SysTools® does not transfer any ownership or Intellectual Property Rights in the Software and Documentation. You authorize SysTools® to use any feedback and ideas You provide in connection with Your use of the Software for any purpose. You agree and acknowledge that by submitting ideas or feedback to SysTools®, the intellectual property in such ideas or feedback become the sole and exclusive property of SysTools®.
For Perpetual Licenses: During the first one-year Term of the Perpetual Licenses, the Support Services shall be included in the Perpetual License Fees. Thereafter, the Support Services shall be made available at an additional cost.
For Subscription Licenses: For Subscription Licenses, the Support Services shall be accompanied / coterminous with the Subscription Licenses throughout Term of the concerned Subscription Licenses at no added costs.
TERM, TERMINATION AND EFFECTS OF TERMINATION
- Term: Unless terminated earlier as provided in this Agreement, the Term of Licenses stated in the Order Form begins on the Start Date and continues thereafter for the Term set forth in the Order Form.
- Termination without cause / Termination for Convenience: This Agreement and/or Support Services cannot be terminated by either party for convenience or without cause. If the Customer terminates this Agreement and/or Support Services without cause or ceases using the Licenses and/or Support Services, the Customer shall not be eligible to receive a refund of any Fees paid by the Customer for such terminated Licenses and/or Support Services.
- Termination for Breach: Either party may terminate this Agreement and/or Support Services due to the other party’s material breach, provided that the non-breaching party has given the other party at least thirty (30) days’ written notice of and the opportunity to cure the breach, except that in the event of unlawful conduct, fraud, or material misrepresentation by Customer, or when the breach is not capable of being cured, SysTools® will be entitled to terminate this Agreement and/or Support Services immediately. Customer will not be entitled to receive a refund of any Fees paid by the Customer if this Agreement and/or Support Services are terminated by SysTools® due to Customer’s breach. Termination for breach will not alter or affect the terminating party’s right to exercise any other remedy for breach.
- Effects of Termination: Upon expiration of a given License Term and/or any expiration or termination of this Agreement, Customer shall promptly pay all sums owed by Customer, return to SysTools® the original copies of all Licensed Software for which the License Term has expired or has been terminated, destroy and/or delete all copies and backup copies thereof from Customer’s computer libraries, storage facilities and/or hosting facilities.
Refund of Fees, if any, shall at all times be governed by SysTools®’ Refund Policy available at https://www.systoolsgroup.com/refund-policy.html
RECORDS RETENTION AND AUDIT
If SysTools® reasonably suspects the Software has been distributed to or obtained by any person or party without SysTools’ prior written consent, that Software is being varied or accessed or used independently of the Software or that Customer is otherwise breaching a term of this Agreement, Customer agrees SysTools® has the right to require Customer to provide a certificate executed by Customer verifying compliance with the terms of this Agreement. If such a certificate is not received by SysTools® within thirty (30) calendar days of being required, it will be considered that a breach of this Agreement has occurred allowing SysTools® to terminate the Licenses granted under this Agreement.
REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
- Each party represents and warrants to the other that (i) it will comply with all applicable laws, rules and regulations in connection with its performance under this Agreement, (ii) that it is a business entity duly formed and in good standing, (iii) that it has full authority to enter into this Agreement, and (iv) that its performance under this Agreement will not violate any other agreement to which it is a party.
- SysTools® warrants that the Software will be provided in a diligent and skillful manner consistent with generally accepted industry standards for like services and deliverables. SysTools® shall have no warranty obligations hereunder with respect to any (i) errors or defects attributable to any modifications or customizations of the Software by the Customer, (ii) Software that is provided by SysTools® free of charge or on a trial basis to Customer, and/or (iii) any bundled third party products in the Software. SysTools®’ and its licensor’s entire liability and Customer’s exclusive remedy for any breach by SysTools® of the warranty stated above shall be, at SysTools® sole discretion, either to (a) use diligent efforts to repair the error or defect or (b) replace the Software that contains the error or defect. In no event shall the Customer be entitled to receive a refund of any Fees paid for the Software having errors or defects. SysTools® obligations set forth in this section shall apply only if Customer supplies such additional information regarding the error or defect as SysTools® reasonably requests. The Customer shall not be entitled to the remedies stated in this clause if the Customer has committed default or delay in payment of any amounts due and payable by the Customer.
- Except as expressly provided in this Agreement, SysTools® makes no other representations or warranties, either express or implied, including, but not limited to, any warranty of fitness for a particular purpose or of merchantability with respect to the Software or Support Services. SysTools® makes no warranty that the access to the Software will be uninterrupted or error free. In no event will SysTools®® be liable for any delay in providing the Software or Support Services.
LIMITATION OF LIABILITY
To the maximum extent permitted by applicable law, in no event will SysTools® or its licensors be liable to Customer or to any third party for any indirect, special, incidental, consequential, punitive or exemplary damages or for the cost of procuring substitute products or services arising out of or in any way relating to or in connection with this Agreement or the use of or inability to use the Software including, without limitation, damages or other losses for loss of use, loss of business, loss of goodwill, work stoppage, lost profits, loss of data, computer failure or any and all other commercial damages or losses even if advised of the possibility thereof and regardless of the legal or equitable theory (contract, indemnity, tort or otherwise) upon which the claim is based.
In no event will SysTools® or its licensor’s aggregate liability to Customer, from any claims or causes of action arising under or related to any Software and/or Support Services provided in this Agreement, exceed the amount of fees received for the concerned Software and/or Support Services in the three-month period immediately preceding the event giving rise to the claim or cause of action.
SysTools® may use Customer’s name and logo on SysTools® customer lists and shall be authorized to identify Customer as a customer/end-user of SysTools®’ Software and services (as applicable) in public relations and marketing materials.
Except as expressly provided in this Agreement, Customer may not assign or transfer any rights or obligations under this Agreement (including by operation of law or otherwise) without the prior written consent of SysTools®. Any purported assignment of rights or transfer of obligations in violation of this section is void. This Agreement will bind each party’s authorized successors and assigns.
SysTools® may provide Customer with general notice by electronic mail to Customer’s e-mail address of record. Customer must give notice to SysTools® (such notice shall be deemed given when received by SysTools®) by emailing SysTools® at [email protected].
GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement shall be governed by the laws of India, without regard to conflict of law provisions. Any dispute, controversy or claim arising under, out of or relating to this Agreement and any subsequent amendments of this Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be referred to and finally determined by the competent courts in Pune, India.
All waivers must be in writing and signed by the party waiving its rights. If any court of competent jurisdiction finds any portion of any provision of this Agreement to be unenforceable or contrary to applicable law, the parties agree that the provision will be deemed modified to the least extent necessary to make it enforceable, and all other provisions of this Agreement will remain unaffected.
This Agreement, together with any schedules, constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all other agreements (express or implied), proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated in this Agreement. The protections of this Agreement will apply to actions of the parties performed in preparation for and anticipation of the execution of this Agreement.