These terms and conditions (“Agreement”) apply to all Order Forms signed between the Client and
HEURISTIX DIGITAL TECHNOLOGIES LLC, a company incorporated under the laws of Delaware having its registered office at 395, Pleasant Valley Way, West Orange, NJ 07052, (hereinafter referred to as “disprz” or the “Licensor”, which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to mean and include its successors and permitted assigns);
disprz and the Licensee shall hereinafter be individually referred to as a “Party” and collectively referred to as “Parties”.
IT IS HEREBY AGREED AS FOLLOWS:
1. Definitions and Interpretations
1.1. In this Agreement, the following words, expressions and abbreviations shall have the following meanings, unless the context otherwise requires:
(a) “Authorized Users” or “User(s)” shall mean only those employees, agents or contracted personnel of the Licensee who are authorized by the Licensee to use the Software, as more specifically outlined in the ORDER FORM;
(b) “Bug Fixes” shall mean the emergency repair of any system operation that does not comply with current approved system specifications provided to the Licensee by disprz. This includes system errors, ‘hung’ or halted screens, or unexpected results within the system that render it unusable for the purpose for which it was designed and licensed by disprz;
(c) “Business Day” shall mean any day (other than Saturday and Sunday) on which the clearing banks are open for business in the territory of the United States of America;
(d) “Cloud” shall mean the Software owned and managed by disprz and as of the date of the agreement deployed in Microsoft’s Azure data centres worldwide and which may include other cloud platforms utilized by disprz from time-to-time;
(e) “Confidential Information” shall mean any information disclosed by either Party pursuant to this Agreement that (a) is in written, graphic, machine readable or other tangible form and is marked “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature, or (b) in the case of oral or visual disclosure is identified as confidential at the time of disclosure and reduced to tangible form, marked as confidential, and provided to the receiving Party within a reasonable time not to exceed 30 (thirty) days, or (c) under the circumstances, should, in good faith, be considered to be confidential. Notwithstanding the foregoing, all technology or proprietary information underlying the Applications belonging to disprz shall be deemed Confidential Information of disprz, without any need for designating the same as confidential or proprietary; and all technology or proprietary information underlying the Licensee Data and User Content, shall be deemed Confidential Information of Licensee without any need for designating the same as confidential or proprietary;
(f) “Documentation” shall mean the documents made available to the Licensee/Authorized Users by or on behalf of disprz via www.disprz.net or other websites owned by disprz or through the Cloud or through physical or soft copies, from time to time, as part of the ORDER FORM.
(g) “Force Majeure” shall mean an act of God, war, civil disturbance, strike, lockout, act of terrorism, flood, fire, explosion or legislation or restriction by any government or other authority, or any other similar circumstance beyond the control of any Party, which has the effect of wholly or partially suspending the obligations hereunder, of the Party concerned during the continuance and to the extent of such prevention, interruption or hindrance;
(h) “License Period” shall mean the period for which the Software have been subscribed to by the Licensee under the ORDER FORM;
(i) “Licensee Data” shall mean all data created by or, in any way, originating from the Licensee or any of the authorized users, and all data that is the output of computer processing or other electronic manipulation of any data created by or, in any way, originated from the Licensee or any of the authorized users, for the purpose of using the Software or facilitating the Licensee’s use of the Software;
(j) “User Content” shall mean all User accounts and User data associated in any manner with the Licensee and its operations;
2. Grant of License
2.1. With effect from the date on which the Licensee and disprz execute the Order Form (“Effective Date”), the Licensee hereby agrees to subscribe to, and to use, the Software developed by disprz, on a Software-as-a-Service basis;
2.2. On and from the Effective Date, disprz grants the Licensee a limited, worldwide, non-transferable, non-sublicensable and non-exclusive right to permit the Authorised Users of the Licensee to use the Software and the Documentation during the License Period in the manner contemplated by this Agreement and ORDER FORM, solely for the purpose of corporate employee learning, development, and engagement.
2.3. In consideration of the license granted under this Clause 2, the Licensee hereby agrees to pay disprz, the License Fee set out in the ORDER FORM, and to comply with all other terms and conditions of this Agreement.
2.4. The Software herein are licensed and not sold. Accordingly, all rights not expressly granted in this Agreement, are expressly reserved by the Licensor and/or its suppliers.
2.5. The Licence shall commence on the Effective Date and continue until terminated in accordance with the provisions of this Agreement.
3. Delivery, Installation and Access
3.1. The Software shall be installed and maintained on the Cloud by disprz, and will be accessible by the Licensee, as per the terms and conditions laid out in this Agreement and the ORDER FORM from the Effective Date or from such other date as agreed to between the Parties.
3.2. Access to the Software is subject to the payment of Licensee Fee by the Licensee, in accordance with the details provided in the Order Form.
3.3. The Software shall be used and consumed by Authorized Users of the Licensee only.
3.4. In the event of any unauthorised use of the Software, where such use is attributable to the act or omission of the Licensee or its employees and/or representatives, without prejudice to disprz’s other rights and remedies, the Licensee shall be liable to pay to disprz an amount equal to the fees (calculated on the basis of disprz’s standard practice and rate) that would be payable had such use been properly licensed from the beginning of the unauthorised use .
3.5. The Service Levels and Software Commercials applicable to the Software pursuant to this Agreement, are set out in the Order Form.
4. License Usage Rights and Restrictions
4.1. This Agreement only gives the Licensee certain limited rights to use the Software during the License Period. disprz reserves all other rights over the Software.
4.2. disprz hereby grants the Licensee a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Software, provided that:
(a) The Licensee has lawfully obtained the Software and complies with the terms of this Agreement; and
(b) The Licensee ensures that the Authorized users who use the Software (accessed either locally or remotely) does so only on the Licensee’s behalf and complies with the terms and conditions set out in this Agreement and Order Form.
4.3. The Licensee shall not:
(a) use, copy, modify, prepare derivative works from, or distribute the Software except as expressly permitted in this Agreement;
(b) reverse assemble, reverse compile, otherwise translate, or reverse engineer the Software or any programs subscribed by it pursuant to this Agreement;
(c) use any of the Software’s components, files, modules, audio-visual content, or related licensed materials separately from the Software;
(d) sublicense, sell, rent, or lease the Software, or assign the License, otherwise than as permitted by this Agreement and/or ORDER FORM;
(e) use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; and
(f) remove, minimize, block or modify any logos, trademarks, copyright, digital watermarks, or other notices of disprz or its suppliers that are included in the Software, including any content made available to the Licensee through such Software, otherwise than as specifically agreed upon between disprz and the Licensee.
4.4. Right to access the Software does not give the Licensee any right to implement disprz’s patents or other intellectual property in any ancillary software or devices that are used to access the Software.
5. Responsibilities of the Licensee
5.1. The Licensee shall:
(a) be responsible for Authorized Users’ compliance with this Agreement;
(b) be solely responsible for the accuracy, quality, integrity and legality of the Licensee Data and of the means by which such Licensee Data is acquired;
(c) be responsible for the security and confidentiality of the password used to access the Software;
(d) use commercially reasonable efforts to prevent unauthorized access to or use of the Software; and
(e) use the Software only in accordance with the Documentation made available by disprz and applicable law.
6. License Fee Consideration and Payments
6.1. In consideration of the grant of License, the Licensee agrees to pay disprz, a License Fee , the details of which are outlined in the Order Form.
6.2. The License Fee (together with goods and service tax thereon, if applicable) shall be levied by disprz with effect from the Effective Date of this License, and shall be payable by the Licensee within 30 Days of the receipt of the disprz’s invoice thereof to enable the Licensee’s continued access to the Software.
6.3. If disprz has not received payment within 30 days after the due date, then without prejudice to any other rights and remedies of disprz:
(a) disprz may, without any liability to the Licensee, disable the Licensee’s password, account and access to all or part of the Software and disprz shall be under no obligation to provide any access to the Software or Documentation while the invoice(s) concerned remain unpaid; and
(b) Interest shall accrue on such due amounts at an annual rate equal to 1% per 30 days delay, commencing on the due date and continuing until such due amounts have been fully paid by the Licensee.
6.4. In the event that the Licensee is desirous of increasing the number of Authorized Users accessing the Software under the subscription terms set out in the Order Form, an additional License Fee shall be payable by the Licensee, if applicable, for these additional Authorized Users. Authorized User subscriptions and corresponding login details cannot be shared among multiple users.
7. Maintenance Support and Service Levels
7.1. Subject to the terms and conditions contained in this Agreement, disprz agrees to provide to the Licensee certain services more fully detailed in Clause 7.2 below and the relevant ORDER FORM (hereinafter referred to as “Maintenance Services” and “Support Services” or “Services/ Service Levels” to assist the Licensee in the implementation, usage and proper functioning of the Software and programs through enhancements, Bug Fixes and improvements made to the Software.
7.2. Apart from enhancements, Bug Fixes and improvements sought by the Licensee from disprz, the following Services shall be included in the Service Levels that the Licensee is entitled to receive from disprz:
(a) Assistance with queries on implementation, operation, day-to-day usage and recommended configuration for smooth operation of the Software.
(b) User, configuration and admin training at the time of installation of the Software, as provided in Clause 8 (Training Services) of this Agreement. However, if future training of any kind is required by the Licensee, the same may be provided at an additional cost which shall be mutually agreed upon.
(c) disprz will bill the Licensee separately for any training services required after the initial training services are provided.
(d) E-mail and telephone support with disprz staff between the local time of 8:00 AM and 5:00 PM EST from Monday to Friday
7.3. The Licensee agrees that this Agreement applies only to the Software functionality available at the time of signing of the Agreement and does not cover any feature functionality planned for release at a future date, unless expressly set out in the Order Form. Enhancements to the existing features of the Software subscribed by the Licensee shall be made available at no additional charge. However, for any new feature or functionality being released with respect to the subscribed Software, which is not a part of the Licensee’s Software License as per this Agreement, disprz reserves the right to make it available at an additional fee, over and above the License Fee. The Licensee will have access to the new features for the Software subscribed only after payment of such additional fee.
7.4. disprz is not responsible for providing Maintenance Services and/or Support Services relating to any additions and/or modifications made to the Software by the Licensee himself, or by any third party. Any issues arising out of such additions and/or modifications shall not be covered by the Services contemplated by this Agreement. Service for the same, if any, shall be provided through a separate agreement between disprz and the Licensee, and the Licensee acknowledges that it shall be billed separately for the same, over and above the License Fee.
7.5. Service Levels shall be extended to the Licensee in the categories set out in the Order Form.
7.6. Notwithstanding the foregoing and that the fault results from any of the circumstances described above, disprz, at its sole discretion, may provide appropriate Services to the Licensee upon the levy of additional charges agreed upon by both Parties, over and above the License Fee.
8.1. disprz shall provide to the Licensee, commencing upon the Effective Date of this Agreement, certain training services as outlined in the ORDER FORM, to be included as part of the Services in consideration of the License Fee.
8.2. Any additional training services requested by the Licensee shall be provided by disprz for additional charges levied on the basis set out in this Agreement.
9.1. This Agreement shall come into force with effect from the Effective Date and, subject to Clause 10 (Termination), shall expire on the completion of the License Period, also to be known as the “Term” of this Agreement.
9.2. Upon expiry of the Term, and in the absence of any notice in line with Clause 9.3, the Agreement shall automatically renew for a period equivalent to that of the Term, subject to mutual agreement of the Parties on revised commercial terms, if any.
9.3. Either Party may notify the other Party at least 30 Days prior to the expiration of the Term or License Period as to whether the notifying Party desires to withdraw from renewal of this Agreement on revised terms and conditions
10.1. Either Party may terminate this Agreement without cause at any time by issuing a notice of 60 days to other Party.
10.2. In the event the Licensee chooses to terminate this Agreement prior to the end of the License Period for reasons other than breach of this Agreement by disprz, the Licensee shall not be entitled to a refund of the License Fee. In case of termination of Agreement due to breach by disprz the License Fee is refundable on a pro-rata basis.
10.3. In the event of a Material Breach (defined in Clause 10.4 below) of the terms and conditions of this Agreement by the Licensee, disprz shall provide a written notice of such breach to the Licensee. In the event that the Licensee fails to cure such a breach within 30 Days of receipt of the notice by disprz (“Cure Period”), disprz shall be entitled to terminate this Agreement upon expiry of the Cure Period, and pursue all legal remedies available to it under the terms and conditions of this Agreement.
10.4. For the purposes of this Agreement, “Material Breach” shall mean the following:
(a) Breach of intellectual property rights; or
(b) In the event the Licensee is unable to resolve implementation issues pertaining to the Software for a period of more than 30 Days, after the same has been brought to the notice of the Licensee by disprz and such implementation issues are not attributable to disprz.
10.5. In the event the Agreement is terminated for any reason by either Party, the Licensee agrees to promptly discontinue use of the Software. Any terms of this Agreement that, by their nature, extend beyond termination of this Agreement remain in effect for the benefit of both Parties.
10.6. disprz reserves the right to terminate this Agreement, with a prior notice of 30 days, and suspend the Software licensed to the Licensee, in the event of (a) non-payment of the License Fee or, the renewal fee by the Licensee, (b) breach of terms and conditions of this Agreement by the Licensee, provided these events are not attributable to any act or omission of disprz. disprz shall notify the Licensee in the event of such suspension. However, disprz will not be liable to pay or settle any damages or claims arising due to such a suspension.
10.7. If this license is suspended due to non-payment of consideration under this agreement, by the Licensee, the same shall be re-instated if the Licensee makes the necessary payment to disprz for the Software at disprz’s sole discretion. Renewal of the License Period shall be made in accordance with Clause 6 (Consideration and Payment Terms) and Clause 9 (Term) of this Agreement.
11. Consequences upon Termination
11.1. Upon expiry of the License Period or on any earlier termination (for whatever reason) as under Clause 10 (Termination) of this Agreement, disprz shall forthwith cease to provide access to the Software to the Licensee or any of the Authorised Users listed in this Agreement or otherwise agreed to by the Parties.
11.2. Upon termination of this Agreement, any rights or authority granted by either Party to the other Party shall terminate with immediate effect and all payments accrued before or on the effective date of termination will become immediately due and payable.
11.3. The accrued rights of the Parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced in any manner.
12. Intellectual Property Rights
12.1. Subject to the limited rights expressly granted hereunder, disprz reserve all rights, title and interest in and to the Software, including all related intellectual property rights. The Licensee acknowledges that disprz is, and shall be the sole owner of all intellectual property rights in and to any solutions, analytical applications and/or products that have been developed by disprz. No rights are granted to the Licensee hereunder other than as expressly set forth herein.
12.2. disprz acknowledges that any intellectual property already owned by the Licensee and residing on the platform of the Software by virtue of the Licensee having inserted it, shall remain the sole property of the Licensee.
12.3. The Licensee further acknowledges all intellectual property in any corrections, enhancements, updates, modifications, versions, translations or any derivatives of the Programs shall remain the property of disprz.
12.4. The Licensee shall be the sole owner of all intellectual property in and to any content that have been developed by the Licensee using the disprz Software.
12.5. The Parties recognize that all third party intellectual property rights are the exclusive property of their respective owners. Each Party shall inform the other Party of any third party intellectual property rights that may be required under the terms of this Agreement. Under such circumstances, both Parties shall seek to procure appropriate licenses to use such third party intellectual property rights from the owner of such third party intellectual property rights, and shall agree on the manner in which the costs of such licenses shall be born.
13.1. Each Party may be given access to Confidential Information (whether communicated orally, in writing, in electronic form or otherwise) from the other Party concerning the business and affairs of the other Party (including disprz’s proprietary information, Licensor Developments and technical data) that it shall have obtained or received as a result of the discussions leading up to or the entering into of this Agreement, in order to perform its obligations under this Agreement.
13.2. The Party that receives Confidential Information shall be known as “Receiving Party”. The Party that discloses Confidential Information shall be known as “Disclosing Party”.
13.3. Both Parties agree to hold all Confidential Information of the other in trust and confidence, as they would their own confidential information. The Parties agree and undertake not to disclose Confidential Information of the other except to those of its respective employees, vendors, agents, consultants, affiliates, sub-contractors, advisors and legal counsel, as may be required to carry out or enforce the terms and conditions of this Agreement.
13.4. The Receiving Party shall not, and shall ensure that its employees, agents, consultants, sub-contractors and professional advisers shall not, during the term of this Agreement or thereafter for a period of 1 year, or during the stage of installation, training and/or support, disclose to any person or use, copy, adapt or alter for any purpose any Confidential Information obtained by it from the Disclosing Party, without the prior written consent of the Disclosing Party, and shall minimize the risk of unauthorized disclosure or use of such Confidential Information.
13.5. Neither Party shall be under an obligation to keep information confidential if it can demonstrate that the information:
(a) was publicly available or generally known to the public at the time of disclosure or has subsequently entered into the public domain, except as a result of a breach of this Agreement; or
(b) was already in the Receiving Party’s possession from another source not related to a Party under this Agreement prior to the disclosure by the Disclosing Party and thus, the Receiving Party was not under any obligation of confidentiality in respect of the same.
13.6. The following circumstances shall not constitute a breach of the obligations of confidentiality set out in this Clause 13 by the Receiving Party, where Confidential Information is disclosed:
(a) to the Receiving Party’s employees, agents, sub-contractors and professional advisers to the extent necessary to enable the Receiving Party to exercise its rights and perform its obligations under the Agreement, provided that such employees, agents, sub-contractors and professional advisers are bound by confidentiality obligations on terms no less onerous than the ones contained in this Agreement;
(b) if, and to the extent, it is required to do so by any law or regulation or Order by any court, Governmental Authority or regulatory agency or authority, provided that, to the extent that it is permitted to do so, the Receiving Party:
(i) provides the Disclosing Party(s) with prompt notice of such request, and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information; and
(ii) co-operates with the Disclosing Party(s) and uses all reasonable endeavours to avoid or limit disclosure.
13.7. The Parties agree that disclosure or use of Confidential Information in breach of this Clause 13 may give rise to irreparable harm to the injured party and acknowledge that remedies other than injunctive relief may not be adequate. Accordingly, each Party has the right to seek the remedies of injunction, specific performance and/or other equitable relief for any threatened or actual breach of this Clause 13, as well as to seek appropriate monetary damages.
13.8. The provisions of this Clause 13 shall survive the termination and/or expiry of this Agreement for a period of 1 year.
14.1. Each Party shall indemnify, defend and hold the other party and its officers, directors, employees, agents, successors and assigns harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including, without limitation, reasonable attorney’s fees) and expenses arising from such Party’s breach of the obligations and warranties under this Agreement.
14.2. disprz shall indemnify, defend and hold the Licensee harmless against claims brought against the Licensee by any third party alleging that Licensee’s use of the Software, in accordance with the terms and conditions of this Agreement, constitutes a direct infringement or misappropriation of the Intellectual Property Rights of a third party.
14.3. Neither Party shall also be liable to indemnify the other Party if such other Party fails to notify the indemnifying Party in writing, within a period of 30 Days from the date on which such a third party claim has arisen. The indemnifying Party is permitted to control fully the defense and any settlement of any such claim as long as such settlement shall not include a financial obligation on the other Party. In the event that the other Party declines the indemnifying Party’s proffered defense, or otherwise fails to cede full control of the defense to the indemnifying Party’s designated counsel, the Licensee will be deemed to have waived the indemnifying Party’s obligations under this Clause 14.
14.4. The provisions of this Clause 14 state the sole, exclusive, and entire liability of the Parties to each other.
15. Limitation of Liability
15.1. In no event shall either Party’s aggregate liability arising out of or related to this Agreement, whether in contract, or under any other theory of liability, exceed the total amount paid by the Licensee hereunder for the then valid current term or, with respect to any single incident, the amount for the remainder of the License Period calculated on a pro-rata basis except in case of breach of confidentiality obligations and claim by third party towards breach of IPR. The foregoing shall not limit the Licensee’s payment obligations under Clause 6 of this Agreement.
15.2. The foregoing limitations of liability and exclusions from liability set forth in this Clause 15 shall not apply (i) in cases of gross negligence or willful misconduct, (ii) to obligations of indemnity under Clause 14 of this Agreement.
16. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the United States of America, and subject to Clause 17 (Dispute Resolution) below, the courts at Delaware shall have exclusive jurisdiction to determine any dispute arising out of, under, or in relation to, any of the matters contained in this Agreement.
17. Dispute Resolution
17.1. Any and all disputes or differences between the Parties hereto arising out of, or in connection with, this Agreement or its performance, shall be submitted to final and binding arbitration at the request of either of the Parties upon written notice to that effect to the other.
17.2. Such arbitration shall be in accordance with the rules framed under the provisions of the arbitration laws applicable in the US, and shall be held in Delaware. All proceedings of such arbitration shall be in the English language.
17.3. The dispute shall be finally settled by a sole arbitrator, mutually appointed by the Parties, by complying with the provisions and the process stipulated in Arbitration laws as applicable in the State of Delaware, from time to time. The costs and fees associated with the appointment of such arbitrator shall be jointly borne by the parties on mutually agreed terms.
17.4. Arbitration awards rendered shall be final and binding and shall not be subject to any form of appeal. The successful Party may seek to enforce the award in the courts of Delaware.
17.5. Nothing herein shall preclude either Party from seeking interim or permanent equitable or injunctive relief, or both, from any court having jurisdiction to grant the same. The pursuit of equitable or injunctive relief shall not be a waiver of the duty of the Parties to pursue any remedy for monetary damages through the arbitration described in this Clause 17.
18. Relationship of Parties
The Parties shall work on a principle to principle basis and as non-exclusive independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
19. Complete Agreement
19.1. This Agreement, including the terms outlined in the ORDER FORM constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings, proposals, representations or agreements, written or oral, regarding such subject matter.
19.2. No amendment to or modification of this Agreement, or waiver of any provisions of this Agreement will be binding, unless in writing and signed or accepted electronically by a duly authorized representative of both Parties.
19.3. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any terms outlined in the ORDER FORM, the terms of such ORDER FORM shall prevail.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
21. Amendments, Waivers, and Cumulative Remedies
Any provision of this Agreement may be amended, varied or waived if, and only if such amendment, variation or waiver is in writing and signed, in the case of an amendment/variation by each of the Parties, or in the case of a waiver, by the Party against whom the waiver is to be effective.
22. Force Majeure
If either Party fails to perform its obligations under this Agreement due to Force Majeure, it shall not be held responsible for any loss or damage which may be incurred by the other Party as a result of such failure. Each Party agrees to give notice to the other Party as soon as possible upon becoming aware of an event that may lead to the invocation of this Clause 22.
Unless otherwise provided herein, all notices or other communications to be given shall be made in writing and by letter (hand delivered), e-mail or facsimile transmission (save as otherwise stated) and shall be deemed to be duly given or made, in the case of personal delivery, when delivered; in the case of facsimile transmission, provided that the sender has received a receipt indicating proper transmission, when dispatched; or, in the case of email, where such email has been followed up with a facsimile or hand delivered letter.
The addresses mentioned above shall be the addresses laid out in the ORDER FORM.
A notice or other communication received on a day other than a Business Day, or after business hours in the place of receipt, shall be deemed to be given on the next following Business Day in such place. In the event that a Party refuses delivery or acceptance of a notice, request or other communication, under this Agreement, it shall be deemed that the notice was given upon proof of the refused delivery, provided the same was sent in the manner specified in this Agreement.