- ZNet grants to the Customer limited, non-exclusive, non-assignable and non- transferable licenses to use the Software- Racknap. Customer may only use the Software on hardware and operating systems as defined in the Implementation, Training and Hardware Requirement Documentation (“Authorized Hardware”), which is a part of this Agreement. Authorized Hardware is defined as hardware owned or leased by the Customer located on Customer’s premises which Customer grants to ZNet for RackNap Installation.
- The Software shall be delivered to the Customer in the most current and commercially available version and release. Subject to complete payment of the license- (in case of monthly leased licenses) fees set forth in Schedule A, which is also a part of this Agreement, the Customer shall be entitled to receive the latest generally available version of the Software upon its’ release by ZNet during the Term hereof.
- Title to the RackNap Software (including all updates and new releases) and its documentation and ownership of all copyrights remains with ZNet Technologies Pvt. Ltd. at all times. Copyright notices and other proprietary rights notices in the Software must not be deleted or modified. This Agreement does not transfer any ownership rights either to Customer or to any other third party. The licenses granted are non-perpetual licenses for the license periods as set forth in the Schedules hereto, which may be renewed as set forth in the respective Schedule. Unless terminated in accordance to the license termination provisions set forth herein, non-perpetual (leased) licenses will renew automatically on the 1st day of each month.
- The Source code from which the Software object code is derived (“Source Code”) is not subject to this Agreement and will, represent a trade secret of ZNet Technologies Pvt. Ltd, India, and shall not be released to the Customer. Except to the extent allowed by the applicable law, neither the Customer nor any other user may reverse assemble or decompile the Software or otherwise attempt to recreate the Source Code.
License Fees / Payment Terms
- The applicable license fees as well as the time periods -monthly / yearly is covered by the respective license fees as set forth in Schedule A hereto. The license fees stated do not include taxes, withholding or any other governmental charges or fees. Customer is responsible for paying all sales, use, value-added, withholding or any other tax or charge as applicable from time to time. In the event the Customer may be required by local legislation to remit any of the above taxes, withholding, fees or other governmental charges when paying licensing fees to ZNet, the Parties agree that the amount of such taxes, withholding, fees or other governmental charges shall be added to the originally invoiced amount, so that after remittance of such taxes, withholding, fees or other governmental charges by the Customer, ZNet will receive the originally invoiced amount.
Terminating one or more modules may terminate the Customer’s ability to use the Software and its features accordingly.
- Monthly licensing (OPEX) fees apply on a per-calendar-month basis and shall be invoiced by ZNet in arrears at the beginning of each month for the previous month in accordance with the revenue-share pricing set forth in Schedule A. In the event the Parties agree to a licensing model on a revenue-share basis in Schedule A, the Customer will be billed for a percentage of the total billed end-customer net revenue (gross revenue less applicable taxes, refunds, chargebacks or fraud), generated by and billed through the RackNap. The applicable percentages are set forth in Schedule A.
All monthly invoices by ZNet pursuant to this Agreement shall become due for payment not later than the 30 days following the date of the previous month’s invoice.
- One-time purchase licenses (CAPEX) will be paid by the Customer completely prior to delivery of the license key to the Customer.
The Product shall be deemed to be delivered to the Customer once the product license key has been made available to the Customer (at least in electronic ways). In any applicable case, the Customer is not entitled to the receipt of any refunds in respect of any license fees paid or any deduction on license fees due for payment. ZNet reserves the right to provide time limited license keys to Customer which shall be extended to cover the complete contractual license period upon receipt of the complete license fee by ZNet.
- Customer shall contact ZNet in writing in the event of any changes in respect to the operating system(s), Authorized Hardware, or any other aspects that may have an effect on the licensing and fees applicable (Pricing Metrics). In the event of any mutual changes in the licensing of the Software or the Pricing Metrics, ZNet will submit additional schedules containing the changed or added licensing method accordingly. If Customer agrees with such change, additional licensing documents will be signed and incorporated herein.
- In the event of any late payment under this Agreement, default interest at a rate of eight percent per annum, numerically added onto the then actual base rate, announced by the RBI per calendar year shall apply, as of the invoice’s due date.
Monthly license fees will be invoiced by ZNet on basis of the Customer’s use of the according functionality of its’ RackNap. To this end, RackNap will automatically report the previous month's usage to ZNet at the beginning of each subsequent accounting month. In the event, such automatic system usage reports cannot be received by ZNet for some reason (i.e. firewall settings), the Customer undertakes to inform ZNet in writing not later than the 3rd working day of every month of the amount of relevant pricing metrics for the software in the previous calendar month which shall form the basis for the invoices to be issued by ZNet. In such case, ZNet will reasonably inform the Customer of such necessity to report before. In the absence of information received from the Customer in regards to the pricing metrics for the previous month, the Parties agree that the previous month’s invoice plus 30% shall apply as the basis for the then actual invoice. Additionally, the Customer commits to change its’ infrastructure settings in order to allow ZNet receipt of automatic ZNet Automation usage reports.
- As services are to be performed at Customer's site, Customer will furnish ZNet’s engineers with all necessary access, materials, reference documentation, CPU time, tools, equipment and necessary highly-skilled human resources as assistance. Customer will implement reasonable measures to prevent ZNet’s inadvertent access to confidential computer records.
- Customer will provide accurate information concerning its business and service needs and will promptly review and verify the completeness and accuracy of any Work Product or output generated during Znet’s performance of the Services in accordance to the terms and conditions of any Statement of Work hereto. Upon delivery of each Services part, the Customer will test and accept this part in order to allow ZNet to proceed with the installation in accordance to the agreed upon project plan.
- Customer undertakes that it had taken all the necessary precautions to prevent its system from any loss or damage during the installation process to be carried out by Znet. Even then in case of any loss or damage sustained by the Customer during the installation shall be solely at the risk and cost of the Customer and Znet shall not be liable in any manner for such loss or damage
ZNet warrants that it has the right to license RackNap to the Customer. ZNet warrants that the media on which the Software is received will be free of software viruses, worms, traps or other malicious code that could reasonably be detected by the use of state-of-the-art protection software and/or devices at the time of the delivery of the Software to the Customer. However, the software licensed in connection with the present Agreement is provided “as is” and all other warranties, express or implied, included, but not limited to any implied warranties of merchantability or fitness for a particular purpose, or any implied warranties arising from the course of dealing, course of performance or usage of trade are disclaimed. ZNet further warrants that all Services will be carried out with all due care and skill and by suitably competent and trained personnel in a good and professional manner and in accordance with any agreed upon procedures. ZNet especially disclaims any and all warranties, express or implied, that usage of the software licensed hereunder will be uninterrupted or error-free. It shall be in Customer’s sole and exclusive responsibility to keep the software licensed hereunder current and apply all updates, upgrades and security patches without undue delay, and ZNet will not assume any responsibility for damages resulting from vulnerability of non-updated/non-current software.
Limitations of Liability
- ZNet shall have no warranty obligations with respect to any failures of the Software which are the result of accident, abuse, misapplication, extreme power surge, extreme electromagnetic field or missing application of updates, upgrade, security patches or similar.
- ZNet is not required to provide the product authorization code if Customer is in breach of this Agreement or if any amounts due under this Agreement are not paid and is not liable for damages caused by the resulting interruption of the operation of the respective Software. Customer is responsible for implementing data backup procedures.
Term / Termination.
- Term of the Agreement. The term of this Agreement as contractual framework shall commence from the “Effective Date”, wherein Effective date is the day on which the RackNap is installed and continue for a minimum period of 24 months (the “initial term). The date of expiration / termination shall in any applicable case be the last day of a calendar month following the termination period.
- In addition to the aforementioned, the Parties hereto may terminate this Agreement or any granted license for a breach of this Agreement or any Schedule hereto if such breach is not remedied by the breaching party within thirty (30) days of receipt of written notice from the non-breaching party. Obligations in this Agreement, which by their nature are continuing, survive termination. Upon termination of the license, or when a Customer is no longer authorized to access the Software, Customer agrees to reclaim, delete, and destroy the Software product at issue.
- Each Party (the “Receiving Party”) commits to prevent any Confidential Information belonging to the other Party (the “Disclosing Party”) from being revealed to third parties for a period of five (5) years from the date of disclosure. As used herein, the term "Confidential Information" shall mean any information of the Disclosing Party provided to the Receiving Party in connection with and related to this Agreement, whether of a commercial, technical or financial kind, including but not limited to business plans, operations or systems, details of customers, suppliers, debtors or creditors, marketing information or information relating to the officers, directors or employees of the Disclosing Party. This restriction does not apply to information which is: (1) generally available to the public or became available due to no fault of the Receiving Party; (2) released by the Disclosing Party without restriction; (3) independently developed or acquired by the Receiving Party; (4) known to the Receiving Party prior to receipt from the Disclosing Party; or (5) revealed pursuant to court order or process of law. Each Party will use reasonable efforts to give the Disclosing Party notice of such order prior to disclosure.
- The Receiving Party shall exercise the same degree of care to guard against disclosure or use of such Confidential Information, as it employs with respect to its own Confidential Information, but in any event not less than reasonable care. Each Party shall make the Confidential Information disclosed by the other Party available only to those of its officers, directors, agents, advisors or any persons employed by the Receiving Party and which are involved in the Services having a ‘Need to know’ in order to carry out the purposes of the Services (‘Authorized Person(s)’). Further, the Receiving Party shall not and shall further procure that all the Authorized Persons shall not make any use of the Confidential Information for its own benefit or that of any third party except for the purposes of the Services nor make unnecessary copies of the same without the prior written approval of the Disclosing Party.
- The Receiving Party shall procure that each of its Authorized Person(s) to whom Confidential Information is disclosed strictly complies with the terms of this Agreement as if he/she was a party thereto, and take all steps available to it to enforce such obligations of confidentiality. However, the aforementioned shall not be construed as to relieve the Receiving Party from its obligations and undertaking herein.
Modifications and Amendments.
This Agreement and its Attachments are complete and exclusive statement relating to the subject matter hereof. Modifications must be in writing, signed by duly authorized representatives of both parties, and specifically referred to this Agreement and/or any Schedule attached hereto. Additional or different terms on current or future Customer or third party purchasing documents are expressly objected to and rejected hereby.
The laws of India govern this agreement. The Parties agree to use their best efforts to mutually resolve any dispute arising under this Agreement. Failing which the dispute may be referred to Sole Arbitrator to be appointed by the Managing Director of Znet Technologies Pvt. Ltd. The Arbitration proceedings shall be carried out at Jaipur in accordance with the Arbitration and Conciliation Act 1996.
Non-Solicitation / Liquidated Damages.
The Customer will not, without the prior written consent of ZNet, solicit, offer work to, employ, or contract with, directly or indirectly, on its own behalf or on behalf of its affiliates, any of ZNet’s Personnel during the lifetime of this Agreement or during the twelve (12) months after expiry / termination of such. For purposes of this section, “Personnel” includes any individual that ZNet employs or has employed as a partner, employee or independent contractor and with which Customer comes into contact in performance of its obligations under this Agreement
The parties agree that any failure by any party hereto to require compliance with a part of this Agreement is not a waiver of that part. If a by operation of law or a court of competent jurisdiction finds any part unenforceable, that part is excluded, but the rest of the Agreement stays in full force and effect. Any attempt by any party to assign or otherwise transfer or assign this Agreement to a third party shall be void, unless the other party provides its written approval. Notwithstanding the aforementioned to the contrary, ZNet may transfer its rights and obligations under this Agreement in their totality to any member of the ZNet Group with prior written notice. The persons who sign below represent they have authority to bind the named parties to this Agreement. The parties hereto confirm to have read this Agreement and its’ Schedules carefully, understand their content and agree to be bound by their terms and conditions.
If this Agreement or any attached document was construed in bilingual form, it is the express Agreement between the Parties that the English version shall be the binding version and shall govern the relationship between the Parties. This Agreement shall not be amended or overruled by any agreement in any other language.