END USER LICENSE AGREEMENT
Please read this End User License Agreement (“EULA/ Agreement”) carefully, as it sets out the terms and conditions upon which We license Our Software for use.
IMPORTANT: THIS IS A LICENSE, NOT A SALE
BEFORE YOU INSTALL THE SOFTWARE, WE WILL ASK YOU TO GIVE YOUR EXPRESS AGREEMENT TO THE TERMS AND CONDITIONS OF THIS EULA BETWEEN YOU (WHETHER AN INDIVIDUAL OR A SINGLE ENTITY) AND TYTO SOFTWARE PRIVATE LIMITED (US/ WE/ OUR), FOR OUR SOFTWARE PRODUCT AND BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. YOU FURTHER AGREE THAT YOUR EMPLOYEES / ANY PERSON YOU AUTHORISE TO USE THE SOFTWARE WILL ALSO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL, COPY OR USE THE SOFTWARE. THIS EULA CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY AND EXCLUSIVE REMEDIES. THE PROVISIONS BELOW FORM THE ESSENTIAL BASIS OF OUR AGREEMENT.
1. DEFINITIONS and INTERPRETATION
1.1 In this EULA:
i. “Computer(s)” means hardware, including personal computers, laptops, workstations, personal digital assistants, smart phones, handheld devices, or other electronic devices for which the Software was designed where the Software will be installed and/or used.
ii. “Effective Date” means the date when the Licensee agrees accepts the terms and conditions of this EULA by clicking “ACCEPT AGREEMENT” at the time of first installation of the software on a computer;
iii. “End User (You/Your)” means individual (s) installing or using the Software on a computer on their own behalf or who are legally using the Software; or, if the Software is being downloaded or installed on a computer on behalf of an organization, such as an employer it further means the organization for which the Software is downloaded or installed and it is represented hereby that such organization has authorized the person accepting this agreement to do so on its behalf and all other employees of the organisation. For purposes hereof the term “organization”, without limitation, includes any partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, labour organization, unincorporated organization, or governmental authority.
iv. “EULA” means this End User License Agreement (including the preamble), and any amendments to it from time to time;
v. “Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected, including but not limited to [failures of or problems with the internet or a part of the internet,] power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars;
vi. “Fee” means the yearly licensing fee which can be accessed on our pricing page available at http://sahipro.com/pricing-licensing/
vii. “Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
viii. “Licensee” (You/Your) means the licensee of the Software under this EULA;
ix. “Licensor” means Tyto Software Private Limited (Us/ We/ Our), a company incorporated under the Companies Act 1956 having its registered office Stylus Serviced Offices, 1st Floor Pine Valley, Embassy Golf Links Business Park, Domlur, Bangalore, 560 071, Karnataka. India;
x. “Renewal Fee” means the fee paid towards renewal of the Software herein;
xi. “Rightholder” (ownership of all rights, whether exclusive or otherwise to the Software) means Us;
xii. “Software” means automation tool to test web applications [including following the application of any Upgrade]; and Software also means and includes Software including any Updates and related materials; For the purpose of playback of scripts other than the systems wherein the licensed Software is used by the User, the following supporting application shall be used, as recommended, i.e. “Sahi Pro Runner”
xiii. “Support” means the online technical help that We will provide during business hours of a business day;
xiv. Update(s) means all upgrades, revisions, patches, enhancements, fixes, modifications, copies, additions or maintenance packs, etc;
1.2 In this EULA, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of this EULA.
1.4 The ejusdem generis rule is not intended to be used in the interpretation of this EULA.
2. GRANT OF LICENSE
This Software is licensed to You, not sold to You and You are granted a limited, personal, worldwide, non-assignable, non-sublicenseable, non-transferable and non-exclusive license to use the Software for Your private, non-commercial purposes as a private user.
User based License: In case you have opted for the User based License, the Software is licensed per user per system with the ability of a read only on other systems in the organization, on a yearly basis.
Concurrent License: In case you have opted for the Concurrent License the Software is licensed on a concurrent license basis with the number of licenses that can be used concurrently shall be limited to number of licenses purchased by You.
The License offered for the usage of the Software under this Agreement, is a trust-based license and it shall be your responsibility to both monitor Your usage level, and purchase sufficient License units to meet Your Software usage.
The Software is licensed on the following conditions:
(a) The Software is licensed on a per user basis with the ability to install on multiple systems within the organization
(b) You may run the Software on multiple systems within the organization for development of scripts.
(c) For the purpose of playback of Scripts, You and any other user within the organization may run the recommended Software on multiple systems within the organization .
(d) For the Concurrent License, at any given point of time during the Term of this Agreement, You or any other user may concurrently use up to a maximum of the number of licenses purchased by You under this Agreement.
(e) For the User based License, each individual license purchased by You may be used by only one individual user.
(f) The codes of the Software or any such recommended software shall not be interchangeably used by You, for any purposes;
BUSINESS USERS: If You are a business, You agree to maintain records, systems and/or procedures that accurately record the number of copies of the Software that have been acquired and installed on Your Computers and will keep the records for two (2) years from the date of Your license to use the Software ends. We may conduct an audit (remotely or at Your facility) of records and systems from Your business, to verify that Your installation of the Software conforms with a valid license from Us. If the audit results find that Your use does not conform to a valid license, then You will be liable for any claims that might accrue from such breach by You.
3. FEE & RENEWAL
3.1 In order to receive access to the Software, You will need to remit the payments using the various payment options available on Our website. On confirmation of payments We will email a license key to You. The said license key will enable You to access the Software.
3.2 The license key is valid for a period of one (1) year (“Term”), post expiry of the said Term in order to ensure continued access to updates and upgrades You will need to renew the Software by paying the applicable Fees.
4. TECHNICAL SUPPORT
On purchasing the Software herein, You will be entitled to email support for any technical or functional clarifications that are sought by You owing to the installation of the Software on Your Computer. The initial response time for any clarifications sought shall be one (1) business day, which shall mean a day on which business is undertaken in India, between 10:00 am and 6:00 pm IST. All clarifications can be sent to email@example.com
5. CONTENT UPDATES
During the Term of the Agreement, You will be entitled to receive Software updates and upgrades which might be provided for functionality improvements. To ensure continued access to the up-to-date Software, ensure timely renewals are undertaken by You. .
i. You shall not emulate, clone, rent, lend, lease, sell, modify, decompile, or reverse-engineer the Software or disassemble or create derivative works based on the Software or any portion thereof with the sole exception of a non-waiverable right granted to You by applicable legislation, and You shall not otherwise reduce any part of the Software to human-readable form or transfer the licensed Software, or any subset of the licensed Software, nor permit any third party to do so, except to the extent the foregoing restriction is expressly prohibited by applicable law. Neither the Software’s binary code nor source may be used or reverse-engineered to re-create the program algorithm, which is proprietary. All rights not expressly granted herein are reserved by Rightholder. Any such unauthorized use of the Software shall result in immediate and automatic termination of this Agreement and the License granted hereunder and will result in criminal and/or civil prosecution against You.
ii. You shall not provide the activation code and/or license key file to third parties or allow third parties access to the activation code and/or license key, which are deemed confidential data of Rightholder and You shall exercise reasonable care in protecting the activation code and/or license key. Keep the activation code in a safe place until the expiration of the license.
iii. You shall not rent, lease or lend the Software to any third party.
iv. The Rightholder has the right to block the License to use the Software in the event You breach any of the terms and conditions of this Agreement and without any refund to You.
v. If You are using the open source version of the Software You do not have the right to receive the Technical Support specified and Updates as mentioned in this Agreement and You do not have the right to transfer the license or the rights to use the Software to any third party.
vi. For the ongoing it shall be Your obligation under this Agreement to make sure neither You nor anyone on behalf of You, whether authorised or not is using the Software in combination with the software obtained from Open Source library and using the details from the Licensed copy of the Software and thereby infringing Our rights. In such an event, You shall be liable to pay to Us the cost of License (s) used and any other such costs that might have accrued because of such act.
vii. Limitations on reverse engineering, decompilation, and disassembly. You may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by this EULA or applicable law notwithstanding this limitation.
7. LIMITED WARRANTY AND DISCLAIMER
I. The Rightholder guarantees that the Software will substantially perform according to the specifications and descriptions provided however that such limited warranty shall not apply to the following: (a) Your Computer’s deficiencies and related infringement for which Rightholder’s expressly disclaims any warranty responsibility; (b) malfunctions, defects, or failures resulting from misuse; abuse; accident; neglect; improper installation, operation or maintenance; theft; vandalism; acts of God; acts of terrorism; power failures or surges; casualty; alteration, non-permitted modification, or repairs by any party other than Rightholder; or any other third parties’ or Your actions or causes beyond Rightholder’s reasonable control; (c) any defect not made known by You to Rightholder as soon as practical after the defect first appears; and (d) incompatibility caused by hardware and/or software components installed on Your Computer; (e) any such usage of the Software by You, which is unauthorised and not recommended by Us, such as combing the Software with any other software whether or not of similar nature.
II. You acknowledge, accept and agree that no Software is error-free and You are advised to back up the Computer with the frequency and reliability suitable for You.
III. The Rightholder does not provide any guarantee that the Software will work correctly in case of violations of the terms described in this Agreement.
IV. The Rightholder does not guarantee that the Software will work correctly if You do not regularly download Updates.
V. The Rightholder does not guarantee protection from any threats or provide any services including but not limited to Support and Update after the expiration of the period specified Clauses 3 of this Agreement or after the License to use the Software is terminated for any reason.
VI. You acknowledge that for better performance the Software will be provisioning settings on its own according to its needs and that it is Your sole responsibility to configure the Software to satisfy Your own requirements.
VII. THE SOFTWARE IS PROVIDED “AS IS” AND THE RIGHTHOLDER MAKES NO REPRESENTATION AND GIVES NO WARRANTY AS TO ITS USE OR PERFORMANCE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM THE EXTENT TO WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW. THE RIGHTHOLDER MAKES NO WARRANTY, CONDITION, REPRESENTATION, OR TERM (EXPRESSED OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, INTEGRATION, OR APPLICABILITY FOR A PARTICULAR PURPOSE. YOU ASSUME ALL FAULTS, AND THE ENTIRE RISK AS TO PERFORMANCE AND RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE. WITHOUT LIMITING THE FOREGOING PROVISIONS, THE RIGHTHOLDER MAKES NO REPRESENTATION AND GIVES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET ANY OR ALL OF YOUR REQUIREMENTS WHETHER OR NOT DISCLOSED TO THE RIGHTHOLDER.
VIII. Subject to the terms of Clause 7. IX below, Rightholder will indemnify and hold You harmless from and against all and any direct damages, costs,direct losses and direct liabilities and fees incurred (including reasonable attorneys’ fees) and agrees, at its expense, to defend or, at its option, to settle, any awarded or settled claim or action brought against You, by a third party alleging that the Software or other customization service of support rendered by Rightholder, infringe or violate patent, copyright and any other intellectual property rights of a third party. Notwithstanding the above, Rightholder has no liability to You if the alleged infringement is based upon: a) the combination of the Software with any product not furnished by Rightholder, b) the modification of the Software made other than by Rightholder, c) the use of the Software as part of an infringing process, or any other illegal action or inaction, where the Software alone does not infringe or become an illegal act, d) Infringement arising out of Rightholder’s compliance with Your specifications/ instructions, e) Use of the Software otherwise than in accordance with the relevant documentation and/or recommendations as provided by the Rightholder.
IX. Further to above and without excluding any of the aforementioned provisions, to the maximum extent permitted by applicable law, in no event shall the rightholder be liable for any special, incidental, punitive, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits or confidential or other information, for business interruption, for loss of privacy, for corruption, damage and loss of data or programs, for failure to meet any duty including any statutory duty, duty of good faith or duty of reasonable care, for negligence, for economic loss, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the Software, the provision of or failure to provide support or other services, information, software, and related content through the software or otherwise arising out of the use of the software, or otherwise under or in connection with any provision of this agreement, or arising out of any breach of contract or any tort (including negligence, misrepresentation, any strict liability obligation or duty), or any breach of statutory duty, or any breach of warranty of the Rightholder, even if the Rightholder has been advised of the possibility of such damages.
You agree that in the event the Rightholder is found liable, the liability of the Rightholder shall be limited by the costs of the software. In no case shall the liability of the Rightholder exceed the fees paid for the software to the Rightholder in the six months preceding the claim from which such liability arises.
8. GNU AND OTHER THIRD-PARTY LICENSES
The Software may include some software programs that are licensed (or sublicensed) to the user under the GNU General Public License (GPL) or other similar free software licenses which, among other rights, permit the user to copy, modify and redistribute certain programs, or portions thereof, and have access to the source code “(“Open-Source Software”). If any Open-Source Software licenses require that the Rightholder provide rights to use, copy or modify an Open-Source Software program that are broader than the rights granted in this Agreement, then such rights shall take precedence over the rights and restrictions herein.
9. NO LIABILITY FOR OPEN SOURCE MATERIALS
The software may contain “open source” materials (e.g., any software subject to open source, copyleft, gnu general public license, library general public license, lesser general public license, mozilla license, berkeley software distribution license, open source initiative license, mit, apache or public domain licenses, or similar license). We make no warranties, and shall have no liability, direct or indirect, whatsoever with respect to open source materials contained in the software.
10. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES
To the maximum extent permitted by applicable law, in no event shall We be liable for any special, incidental, punitive, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the Software, the provision of or failure to provide Support or other services, information, Software, and related content through the Software or otherwise arising out of the use of the Software, or otherwise under or in connection with any provision of this EULA.
11. INTELLECTUAL PROPERTY OWNERSHIP
I. You agree that the software and the authorship, systems, ideas, methods of operation, documentation and other information contained in the Software are proprietary intellectual property and/or the valuable trade secrets of the Rightholder and that the Rightholder is protected by civil and criminal law, and by the law of copyright, trade secret, trademark and patent in India, other countries and international treaties. This Agreement does not grant You any rights to the intellectual property, including any trademarks or service marks of the Rightholder. The Rightholder owns and retain all right, title, and interest in and to the Software, including without limitation any error corrections, enhancements, updates or other modifications to the Software, whether made by the Rightholder or any third party, and all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights therein. Your possession, installation or use of the software does not transfer to You any title to the intellectual property in the Software, and You will not acquire any rights to the software except as expressly set forth in this Agreement. All copies of the Software made hereunder must contain the same proprietary notices that appear on and in the Software. Except as stated herein, this agreement does not grant You any intellectual property rights in the Software and You acknowledge that the license, as further defined herein, granted under this Agreement only provides You with a right of limited use under the terms and conditions of this Agreement. Rightholder reserves all rights not expressly granted to You in this Agreement.
II. You agree not to modify or alter the Software in any way. You may not remove or alter any copyright notices or other proprietary notices on any copies of the Software.
You acknowledge that this Software may be subject to export controls or restrictions by the United States or other countries or territories and You hereby certify that You are not located in Cuba, Iran, North Korea, Sudan, or Syria. Additionally, You affirm that, to Your knowledge, You are not included on any list that would cause Our Software’s export of this Product to You to be prohibited by the laws or regulations of the United States or any other country for the time being in force, including the Department of Commerce’s (“DOC”) Denied Persons, Entities, and Unverified Lists; the U.S. Department of State’s Debarred List; or on the U.S. Department of Treasury’s lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers, or Specially Designated Terrorists. You agree to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce. Specifically, You agree that You will not — directly or indirectly — sell, export, re-export, transfer, divert, or otherwise dispose of the Product received from Us to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. You agree to indemnify, to the fullest extent permitted by law, Us from and against any fines or penalties that may arise as a result of any breach of this provision.
Without prejudice to any other rights, We may without notice terminate this EULA if You fail to comply with the terms and conditions of this EULA or if You are found to have breached any provision of this Agreement. In such event, We shall not be liable to make any monetary payments to You even in case Your subscription period is not over and You must destroy all copies of the Software in Your possession immediately.
14. APPLICABLE LAW
This EULA is governed by the laws of India. Any dispute arising out of this EULA shall be referred for arbitration by a sole arbitrator appointed by Us in accordance with the Indian Arbitration and Conciliation Act, 1996. The venue of the arbitration shall be Bangalore and the arbitration shall be conducted in English. The award passed by the sole arbitrator shall be final and binding on both Us and You
This EULA shall be subject to the exclusive jurisdiction of courts in Bangalore.
15. ENTIRE AGREEMENT; SEVERABILITY
This EULA (including any addendum or amendment to this EULA which is included with the Software) is the entire agreement between You and Us relating to the Software and the Support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. To the extent the terms of any Our policies or programs for Support services conflict with the terms of this EULA, the terms of this EULA shall have the control. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.