End User License Agreement
This is an agreement (“EULA/the Agreement”) between You and M/S: PEPUP Emerge Technologies Pvt Ltd
and governs your Use of the application of the Company or the website of the Company. “You” and “Your”
means the individual or legal entity licensing the Application and the underlying Software under this EULA.
“Use” or “Using” means to download, install, activate, access or otherwise use the Software. “Upgrades”
means all updates, upgrades, bug fixes, error corrections, enhancements and other modifications to the Software
and backup copies thereof. By Using the Software, You agree to be bound by the terms of the EULA. If
you are entering into this EULA on behalf of an entity, you represent that you have authority to bind that entity.
If you do not have such authority or you do not agree to the terms of the EULA, neither you nor the entity may
Use the Software within thirty (30) days of the date you acquired the Software. You shall be entitled to a free
trial to use the Application for a period of 3 days subsequent to which You are required to pay for usage of the
Application and such payment shall not be refunded by the Company under any circumstances.
1. Definitions In this agreement:
1.1 “Agreement” means this End User License Agreement together with any exhibits attached hereto,
1.2 “Application” means single software product from a single vendor (either Company or a third party) used by an indi idual or device that performs a single function such as word processing or electronic mail. Forgreater certainty, a utility or multi-function program shall be considered to consist of multiple Applications.
1.3 “Documentation” means the publication (whether electronic or paper-based) prepared and delivered to You by the Company that accompanies the Software, such as reference, user, installation, systems administrator and technical guides;
1.4 “Software” means those items of software in object code form, only proprietary to the Company and which have been downloaded by You, and any patch, update, modification or other enhancement thereto
licensed to You by the Company at its sole discretion, in accordance with the provisions contained in this Agreement;
1.5 “User License” means a right to access the server with an established named or concurrent account;
2. Grant of License
Subject to the terms and conditions of this License, including Your payment obligations, the Company hereby grants to You, a non-exclusive, non-transferable license to Use object code versions of the Software and the Documentation for a period not exceeding 90 days at any time solely for the purposes for which the Application has been downloaded and in accordance with Documentation. You shall be entitled to download the Application and the Software only once on one handset i.e. either (i) a personal computer; (ii) a tablet; (iii) a mobile phone (each a “Device”). You agree that once the Application is downloaded on one Device, You will not be permitted to access the Application from another Device.
3. Your Undertakings and Statements
3.1 You undertake not to perform any of the acts referred to in this sub-clause 3.1, except to the extent permitted by the applicable law, as a lawful user (i.e., a party with express right to use) of the Software and only for the specific limited purposes stated in such applicable law or herein. You undertake:
(i) not to copy the Software (other than for normal system operation and as specified in Clause 2 above);
(ii) not to modify the Software;
(iii) not to reverse engineer, disassemble, reverse translate, decompile or in any other manner decode the Software provided.
3.2 In addition, You undertake:
(i) to supervise and control use of the Software in accordance with the terms of this Agreement;
(ii) to replace the current version of the Software with the updated or upgraded version forthwith upon receipt;
(iii) not to provide or otherwise make available the Software in whole or in part (including but not limited to program listings, object and source program listings, object code), in any form to any other party without the written consent of the Company.
(iv) within 10 (ten) days after the date of termination or discontinuance of this Agreement for whatever reason, to destroy the confidential information and Software, and all updates, upgrades or copies, in whole and in part, in any form including partial copies or modifications of the Software received from the Licensor or made in connection with this Agreement and to provide a written certification of destruction with respect thereto to the Company, if the Company so desires;
(v) not to modify or create any derivatives of the Software or merge all or any part of the Software with another program.
(vi) transfer, sublicense, or assign Your rights under this license to any other person or entity unless expressly authorized by the Company in writing;
(vii) reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the Software, except as provided in Section 16 below;
(viii) not to make the functionality of the Software available to third parties on a commercial basis;
(ix) Use Software that is licensed for a specific device, whether physical or virtual, on another device,unless expressly authorized by the Company in writing;
(x) remove, modify, or conceal any product identification, copyright, proprietary, intellectual property notices or other marks on or within the Software;
4. Disclaimer of Warranties:
Except for the explicit warranties provided in clause 4, the Software and the Application is provided on an “as is” without any representations, conditions, or warranties of any kind. To the extent permitted by applicable law, the Company disclaims all other warranties with respect to the Software and the Application, either express or implied, including but not limited to any implied warranties of merchantability or fitness for any particular purpose.
5. Limitation of Liability:
The Company shall not have any liability (except under the circumstances and as provided in Clause 7 below) on any account including without limitation, on account of damages, costs, expenses or loss of profit or opportunity experienced by You. The Company does not warrant that the Software will operate uninterrupted or error-free or that all errors will be corrected. In addition, the Company does not warrant that the Software will be free of vulnerability to intrusion or attack. In no event shall the Company be liable for: (a) indirect, incidental, exemplary, special or consequential damages; (b) loss or corruption of data or interrupted or loss of business; or (c) loss of revenue, profits, goodwill or anticipated sales or savings.
The liability of the Company shall not, in any event whatsoever, exceed the fees paid by You to the Company for usage or as a subscription to the Application. This limitation of liability for Software is cumulative and not per incident. Nothing in this Agreement limits or excludes any liability that cannot be limited or excluded under applicable law.
6. Indemnification by You
You agree to indemnify, defend and hold harmless the Company, its affiliates, employees, directors, agents and consultants from and against any and all claims or actions, and regardless of the form of action, brought against the Company that arise out of, result from, or relate to the use of the Software otherwise than in accordance with the terms contained herein by the Company.
7. Confidential Information
7.1 All information, data, drawings, specifications, documentation, software listings, source or object code in relation to the software, which the Company may have imparted and may from time to time impart to You, is proprietary and confidential. You agree that you shall use (and shall cause its employees and agents to use) the same solely in accordance with the provisions of this Agreement, and shall not during the term of this Agreement and at any time thereafter, disclose such information to any other person.
7.2 Subject only to the specific, limited provisions contained in Clause 7.1 above, You further agree that it shall not itself or through any subsidiary, agent, affiliate or third party, use such confidential information to copy, reproduce, translate, adapt, vary, decompile, disassemble or reverse engineer the Software nor shall You sell, lease, license, sub-license or otherwise deal with the Software or any part, or variations, modifications, copies, releases, versions or enhancements thereof or have any software or other program written or developed for itself based on any confidential information supplied by the Company.
7.3 The foregoing provisions shall not prevent the disclosure or use by You of any information which is or hereafter, through no fault of Yours, becomes public knowledge or to the extent permitted by law.
This Agreement shall continue for as long as You use the Software or 90 days, whichever is lesser unless earlier terminated in accordance with clause 11.
9. Termination: This Agreement and the license hereunder may be terminated:
9.1 By either Party immediately upon written notice
9.2. By either Party on written notice, if the other Party commits a material breach of this Agreement that is not cured within thirty (30) days following written notice of that breach from the non-breaching Party.
9.3 Upon termination of the Agreement in any manner, provisions contained in the Agreement that are
stated to survive termination of the Agreement shall survive notwithstanding termination of the Agreement. Upon termination or expiry of this Agreement, the content in the Application shall no longer be accessible by You.
10. Support and Updates:
10.1 This Agreement does not grant You the right to any updates or enhancements of the Software or the right to receive any support in respect to the Software. Such updates and other support services may be purchased separately from the Company in accordance with the support program of the Company. The
purchase of support and the receipt of updates and enhancements shall not increase the number of authorized copies or users of the Software. Use of such updates or enhancements shall be governed by the terms and conditions of this Agreement.
(10.2 From time to time, the Company may, at its sole discretion, make available to You those updates that are critical for the functioning of the software, at no additional cost.
11. Force Majeure
11.1 The Company shall be under no liability to You in respect of anything which, apart from this provision,
may constitute breach of this Agreement arising by reason of force majeure, namely, circumstances
beyond the control of the Company which shall include (but shall not be limited to) acts of God, act of war, perils of the sea or air, fire, flood, drought, disease outbreaks including epidemics, explosion, sabotage, accident, embargo, riot, terrorist attacks, civil commotion, including acts of local government, inability to supply the Software, materials, breakdown of equipment or labour disputes of whatever nature and for whatever cause arising including (but without prejudice to the generality of the foregoing), work to rule, overtime bars, strikes and lockouts, and whether between either of the Parties hereto and any or all of its employees and/or any other employer and any or all of its employees and/or between any two or more groups of employees (and whether or either of the Parties hereto or any other employer).
12. Copyrights, Patents, Trademarks and Intellectual Property Rights
12.1 You acknowledge that any and all of the copyrights, trademarks and other intellectual property rights used or embodied in or in connection with the Software including all documentation and manual relating thereto is and shall remain the property of the Company and You shall not during or at any time after the termination of this Agreement in any way question or dispute the ownership or any other such rights by the Company.
12.2 The Parties acknowledge that all trademarks, copyrights and other rights belonging to either party may only be used by the other party with the consent of such a party and in accordance with this Agreement or in such other manner as may be permitted in writing by the Company.
12.3 The Parties shall not, during or after the termination of this Agreement, without the prior written consent of such a party, use or adopt any name, trade name, trading style or commercial designation that includes or is similar to or may be mistaken for the whole or any part of any copy right, trademark, trade name, trading style or commercial designation belonging to either party.
13. Governing Law and Dispute Resolution
13.1 This Agreement shall be governed by and construed under the laws of India. Subject to arbitration clause below, any dispute arising out of or in relation to this Agreement shall be submitted to the sole jurisdiction of the courts of law at Chennai, India.
13.2 Alternate Dispute Resolution
(i) All disputes between the parties hereto arising from or in relation to any matters covered by these Terms and Conditions including any questions regarding the validity of these Terms and Conditions shall be resolved by arbitration in accordance with the Arbitration and Conciliation Act, 1996 and in the manner set out in this Clause 13.
(ii) The party shall serve a written notice of dispute (“Dispute Notice”) to the other party and the parties shall make best efforts to resolve the disputes within 15 (fifteen) days from the date of the Dispute Notice (“Resolution Period”).
(iii) In case the parties are unable to resolve their dispute within the Resolution Period, the parties shall refer the matter to an Arbitration Tribunal constituting of a single Arbitrator, appointed by the mutual consent of the Parties.
(iv) The award of the arbitral panel so constituted shall be final and binding on the parties.
(v) The arbitration shall be conducted in English language and the seat of arbitration shall be at Chennai
All notices and other communications required or permitted under this Agreement shall be in writing and shall be served through e-mail at the email address provided by you at the time of registration.
You shall not assign or otherwise transfer all or any of its rights or obligations under this Agreement without prior written consent of the Company.
No failure or neglect of either party to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of those rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice either party’s rights to take subsequent action.
In the event that any of these terms, conditions or provisions shall be determined by any competent
authority to be invalid, unlawful or unenforceable to any extent, such term, condition, or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law, and the parties shall forthwith proceed to amend such provision found to be invalid, unlawful or unenforceable in such a manner, keeping in mind the relative commercial interests of both parties, in order to make them valid, legal and enforceable.