Appendix C-2 to DIR Contract No. DIR-SDD-875
eXBis Business Intelligence and Dashboard Tools
END-USER LICENSE AGREEMENT
End-User License Agreement No: EXNSYS/PRL/EULA/08-09/001 dated 26th August, 2008.
Effective Date: _ _ /_ _ /_ _ _ _.
This End-User Software License Agreement (hereinafter referred to as “License Agreement”)
is entered into by and between
M/s. EXENSYS SOFTWARE SOLUTIONS LIMITED, AON Center, Suite 2200, 200 East
Randolph, Chicago, IL 60601(hereinafter referred to as “Licensor” which expression shall, unless
repugnant to the meaning or context thereof, be deemed to include its executors, administrators,
legal representatives, successors and permitted assigns,
______________________________________________________________, having its office at
________________________________________(hereinafter referred to as “Licensee” which
expression shall, unless repugnant to the meaning or context thereof, be deemed to include its
executors, administrators, legal representatives, successors and permitted assigns).
Each of the Licensee and Licensor are referred to in this Agreement individually as a “Party” and
collectively as the “Parties”.
WHEREAS, the Licensor has developed eXBis – a Business Intelligence framework application
(hereinafter referred to as the "Product") with related documentation and desires to grant a license
to the Licensee. Licensor is to permit Licensee to use the Product, as per the terms set forth in this
AND WHEREAS, in consideration of the mutual promises set forth herein, Licensor and
Licensee hereby agree as follows:
Shall mean the code to the application, i.e., the specific functions, forms, tables and reports
which form a part of the Product.
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Shall mean all and any electronic, written aids and specifications developed by Licensor in
relation to the Product, for which the Licensee has acquired the right of use from time to
time, and any descriptions developed by Licensor in relation to the Product.
1.3 Internal Users
Shall mean employees and/or contractors working for the Licensee or the Licensee’s
Subsidiaries who have been authorized by the Licensee to use the Product in their work for
the Licensee or the Subsidiary, and for which the Licensee has acquired and paid for the
right of use to the Product.
1.4 External Users
Shall mean all third parties for which the Licensee has acquired and paid for the right of use
to the Product.
Shall mean part(s) of the latest electronic standard version of eXensys 3.1v software
application, with any integrated components, delivered by Licensor, for which the Licensee
has acquired and actually paid for the right of use from time to time, and any related
Shall mean the companies controlled by the Licensee by ownership of more than 51% of the
shares or the voting rights in such companies and/or agencies over which Licensee has
actual administrative control and responsibility, and for which the Licensee has acquired and
paid for the right of use to the Product. Such companies and/or agencies must be named /
listed in this Agreement as Annexure-I.
Shall mean new versions of the Product which Licensor may release from time to time.
1.8 Third Party
Individual or legal entity other than Licensee and Licensor.
2. Scope of the License
2.1 License Grant
Licensor hereby grants to the Licensee, for an indefinite period of time, a non-assignable,
non-transferable, limited, revocable and non-exclusive right to use the Product on only one
Server at any one time.
The Licensee is granted the right to use the Product for the following users:
i) All Internal Users, including Internal Users of the Subsidiaries
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ii) External Users, but only for the purpose of accessing and modifying the
Thus, the Licensee shall have no right whatsoever to allow such External Users to use the
Product for bookkeeping of their own or other parties’ data. Apart from the situations stated
in this Clause 2.1.2, the Licensee shall have no right to grant access to the Licensee’s or any
third party's data by means of the Product.
To the extent that the Licensee permits the Internal Users, including users in Subsidiaries, as
stated in Clause 2.1.2, to access and use the Product as stated in Clause 2.1.2, it shall be the
sole responsibility of the Licensee to ensure that the stated users do not violate the terms
and conditions of this License Agreement, and that the Subsidiaries accept in a legally
binding way to be bound by the terms and conditions stated in this License Agreement prior
to granting the Subsidiaries access to the Product. Where the Licensee fails to fulfill this
obligation, it shall be deemed breach of this License Agreement, and such breach shall entitle
Licensor to terminate this License Agreement for cause, cf. Clause 9.2.1, and pursue all
remedies available to it.
The Licensee’s right to use the Product (or any intellectual property of Licensor or any of
their affiliates associated therewith) does not include any license, right, power or authority to
(a) create derivative works of the Product in any manner that would cause the Product or
derivative work thereof, in whole or in part, to become subject to any of the terms of the
Excluded License, or (b) distribute the Product (or any intellectual property of Licensor or
any of their affiliates associated therewith) or derivative works thereof in any manner that
would cause the Product (or any intellectual property of Licensor or any of their affiliates
associated therewith) or derivative work thereof to become subject to any of the terms of the
Excluded License. “Excluded License” shall mean any license that requires as a condition of
use, modification and/or distribution of software, subject to the Excluded License, that such
software or other software combined and/or distributed with such software be (A) disclosed
or distributed in source code form, (B) licensed for the purpose of making derivative works,
or (C) redistributable at no charge.
Territory. The license granted hereunder is valid only in _ _ _ _ _ i.e., the “Territory”).
Licensee shall not ship, transfer, or otherwise export the Product outside the Territory
without Licensor’s prior written consent and Licensee's payment of any additional fees at
Licensor’s then current rates.
2.2.1 The Product is a standard product, and it shall be the responsibility of the Licensee alone to
ensure that the functions in the Product fulfill the Licensee’s requirements.
2.2.2 The Licensee shall have the right to adjust or otherwise modify the Application of the
Product to the extent that such adjustment or modification is required for the use of the
Product stipulated in this License Agreement, and to the extent that the Licensee has
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acquired and actually paid for the tools to perform such adjustment or modification where
this is required by Exensys Software Solutions.
2.3.1 The Licensee can acquire Upgrades to the extent that Upgrades are issued by Exensys
2.3.1 In connection with the implementation of Upgrades, Licensor shall not represent or warrant
that the Licensee will be able to make full use of any enhancements, customization,
extensions or other modifications created as components in the Application of the Product.
2.4 Permitted Copying
2.4.1 The Licensee shall have the right to make copies of the Product for the following purposes
only: 1) copies for archival or backup purposes, 2) one (1) copy for development and test
purposes and 3) copies of the Product where, and only to the extent that the right to make
such copies is stipulated by mandatory, statutory legislation, and the Licensee shall comply
with such legislation in all respects.
2.4.2 The use of the stated copies of the Product is subject to the terms and conditions stated in
this License Agreement.
3. Intellectual Property Rights/Copyrights
3.1 Licensor holds full copyright, title and all and any other rights to the Product. The Product is
protected by copyright laws and international treaty provisions. Any disregard of licensor’s
rights by Licensee, including inappropriate access to the Product which might render
copying of License Files/Code of the Product, for third parties, shall be deemed to be a
material breach of this License Agreement and shall entitle Licensor to terminate this
License Agreement for cause, cf. Clause 9.2.1, and pursue all remedies available to it.
3.2 The Licensee shall not break or change any License Files/Codes. Nor shall the Licensee
change or remove any marks and/or notices concerning copyright, trademarks or other
rights, or references hereto stated in the Product or on the medium upon which the Product
may have been delivered.
3.3 The Licensee shall not reverse engineer, disassemble or decompile the Product, except where
and only to the extent that such operations are permitted according to mandatory, statutory
legislation and the Licensee shall comply with that legislation in all respects.
4. Infringement of Third Party Rights
4.1 If a third party objects to the Licensee’s use of the Product based on the claim that the use
of the Product infringes such third party’s intellectual property right (hereinafter referred to
as “Infringement Claim”), Licensor will defend the Licensee against that Infringement Claim
and pay all costs, damages and legal fees, provided that the Licensee promptly 1) notifies
Licensor in writing of the Infringement Claim as soon as it becomes aware of such
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Infringement Claim, 2) allows Licensor to control the defense and any related settlement
negotiations in coordination with the Office of the Attorney General for state agency
Customers, including receiving the Attorney General’s advance consent to pay settlements,
and 3) cooperates with Licensor in the defence and any related settlement negotiations by
providing Licensor with appropriate information and assistance needed for such defence or
4.2 In the event of an Infringement Claim, Licensor shall be entitled to either: 1) obtain the
continued right for the Licensee to use the Product, 2) bring the infringement to an end by
modifying the Product or replacing the Product with other software which, essentially,
possesses the same functions as the affected Product, or 3) terminate this License
Agreement with written notice and pay to the Licensee an amount equal to the license fee
actually paid for the license to the Product by the Licensee. Licensor shall only be obliged to
pay the stated amount to the Licensee if the Infringement Claim is actually raised against the
Licensee within a period of five (5) years following the date of the Licensee’s acceptance of
this License Agreement. If an Infringement Claim is raised against the Licensee after the
stated period has expired, Licensor shall be entitled to terminate this License Agreement
without payment of any amount to the Licensee. The performance of Licensors’ obligations
under this Clause 4.2 shall be Licensors’ total aggregate liability and entire obligation to the
Licensee as a consequence of all and any Infringement Claims, and the Licensee shall have
no other claims against Licensor as a result of such Infringement Claim. Upon termination
of this License Agreement, the Licensee shall promptly cease using the Product and fulfill
the terms and conditions connected to termination as stated in Clause 9.1.1.
4.3 The limited warranty stated in Clause 5.1 and 5.2 is void if the Infringement Claim has
resulted from accident, abuse or misapplication. Any modification of the Product by anyone
other than Licensor voids the foregoing warranty on any portion of the Product modified or
affected by such modification.
5. Limited Warranty
5.1 Where the Licensee within a period of six (6) months from the date of installation provides
written documentation demonstrating that the Product does not perform substantially in
accordance with its electronic user documentation, and that there is a significant error in the
Product, (i.e., an error characterized by the fact that one or more of the Licensee's vital
business functions cannot be carried into effect owing to the fact that the error renders the
Product inoperable), Licensor shall either 1) deliver, free of charge, a new version of the
Product without the error, 2) correct the error free of charge, or 3) return the license fee
actually paid for the license to the Product by the Licensee. The performance of Licensors’
obligations under this Clause 5.1 shall be Licensors’ total aggregate liability and Licensors’
entire obligation to the Licensee as a consequence of all and any errors in the Product, and
the Licensee shall have no other claims against Licensor as a result of such errors.
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5.2 Error correction may also take the form of a statement of procedures or manners of
application ("work arounds") whereby the error will have no significant effect on the
Licensee's use of the Product. This limited warranty is void if failure of the Product has
resulted from accident, abuse or misapplication. Any modification of the Product by anyone
other than Licensor or its authorized contractors or partners voids the foregoing warranty
on any portion of the Product modified or affected by such modification.
5.3 The Product is provided “As Is” and, to the fullest extent permitted by law, Licensor makes
no other warranties or representations and accepts no other conditions in relation to the
Product. Accordingly, the Licensee shall have no right to raise claims against Licensor if the
Product contains errors and inconveniences not covered by Clause 5.1, and Licensor does
not correct such errors or inconveniences or where the operation and performance of the
Product are not free of interruptions or errors.
6. Limitation of Liability
6.1 In no event and no matter the circumstances shall Licensor be liable for any loss of
anticipated profit, loss of data, damage to records or data or any indirect, special, incidental
or consequential damages or loss (collectively “losses”) (which for purposes of this License
Agreement shall be deemed to include, but not be limited to the loss of goodwill, or loss as a
consequence of any kind of business interruption) arising out of or in connection with this
License Agreement or the use or performance of the Product or services connected thereto
even if Licensor was advised of the possibility of such losses and regardless of whether the
cause of action is in contract or tort. Accordingly, the Licensee cannot claim, demand or
seek recovery from Licensor for any of the foregoing losses, and Licensor will not indemnify
the Licensee for such claims.
6.2 To the maximum extent permitted by applicable law, Licensor disclaims any product liability
as a consequence of loss or damage to property which, in view of its nature, is normally
intended for commercial use.
6.3 In all and any event, no matter the circumstances, Licensors’ total aggregate liability for loss
or damage arising out of or in connection with this License Agreement or the use or
performance of the Product or services connected thereto shall not exceed the amount of
the license fee actually paid by the Licensee for the license to the Product.
6.4 Licensor shall have no responsibility or liability for any adjustments or other
modifications in the Product or any service and support of the Product performed
by the Licensee itself or provided by third parties or partners of Licensor. Further,
Licensor shall have no responsibility or liability for any defects which are a
consequence of external factors, including other Products, or a consequence of the
integration of or interaction between the Product and the Licensee’s own hardware and
Nothing in this Clause 6 shall be construed as limiting Licensor’s liability:
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(a) for personal injury or death arising as a result of its own negligence or that of its agents
or subcontractors; or
(b) Arising as a result of its fraudulent act.
6.5 Any person who is not party to this License Agreement shall have no right under the
Contracts or similar legislation in other countries where applicable or otherwise to enforce
any term of this License Agreement.
7. Proprietary & Confidential Information
7.1 To the extent allowed by the Texas Public Information Act, the Licensee acknowledges that
the Products constitute Proprietary and Confidential Information of the Licensor and that
the protection of this Confidential Information is of highest importance and that the
Licensor may employ protection methods within Products to prevent unauthorized use of
the Products. The Licensee agrees, to the extent allowed by the Texas Public Information
Act, to keep the Products in strict confidence, to take appropriate steps to ensure that
Persons authorized to have access to and display of the Products and its processes to enable
the Licensee to use the Products as contemplated by this License Agreement have been
advised of and have agreed to treat the Products in strict confidentiality in accordance with
this License Agreement.
7.2 The Licensee shall not lend, sell, give, sub license, lease, assign, share or otherwise part with
or disclose the Products and license keys or the Confidential Information, or any associated
Products derived or developed from the Products without the prior written approval of the
Licensor, which approval may be given or withheld by the Licensor in its absolute discretion.
7.3 The Licensee agrees that any unauthorized use or download or disclosure of the Confidential
Information, whether for commercial or non commercial purposes, for consideration or
otherwise either directly or indirectly, by the Licensee, shall constitute theft,
misappropriation and a criminal breach of trust on the part of the Licensee and a breach of
undertaking made by the Licensee under this Agreement.
7.4 It is expressly agreed to by the Licensee that upon the expiry of the Term or the sooner
termination of this Agreement, the Licensee shall, subject to applicable records retention
laws and policies, return all documents, data, literature, and destroy/delete any material, etc.,
comprising Confidential Information to the Licensor or at the request of the Licensor
destroy such Confidential Information and provide proof and certification thereof, to the
satisfaction of the Licensor. The Licensee further agrees and undertakes that the obligation
and undertaking to maintain the confidentiality of the Confidential Information shall survive
the termination of this agreement. The Licensee shall remove all copies and discontinue all
use of the Products. The Licensee agrees that by virtue of allowing the use of the Products,
no title to the Intellectual Property is transferred. The Licensee further acknowledges that
the title and full ownership rights continue to remain with the Licensor.
7.5 The Licensee agrees not to disclose the terms and conditions of this agreement to any third
party except as required by any provisions of law.
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8.1 By the Licensee
The Licensee shall have no right to sell/rent out/lend or in any other way transfer or assign
the right to use the Product or any right or obligation under this License Agreement to any
third party without the prior written consent of Licensor. Where such consent is obtained,
the transfer shall be executed according to the guidelines for such transfer set by Licensor.
8.2 By Licensors
Licensor reserves the right to transfer its rights and obligations under this License
Agreement in whole or in part to another company within the Licensor Group or a third
9. Term and Termination
If not otherwise specified on the Purchase Order Form, each Products License shall remain
in effect perpetually, unless terminated as provided in Section 9.2 or 9.3 below or otherwise
as provided herein.
9.1 Termination by Licensee
Termination shall be in accordance with Section 10.B. of Appendix A of the DIR Contract
9.2 Effect of Termination
Termination of this Agreement or any License shall not limit either party from pursuing any
other remedies available to it, including injunctive relief, nor such termination relieve
Licensee’s obligation to pay all License Fees and any other Fees that have accrued or are
otherwise owed by Licensee under this Agreement (or any Amendment to this Agreement,
Purchase Order Form or other similar document related hereto). Within seven (7) days of
termination of this Agreement, Licensee shall pay to Licensor all unpaid License Fees or
other Fees accrued prior to termination. The Parties’ rights and obligations under Clause 2
Section 2.1 (ii) and Clause 4, 6 and 7 shall survive termination of this Agreement.
9.3 Handling of Products upon Termination
If the Product License granted under this Agreement is terminated or revoked, Licensee
shall, subject to compliance with applicable records retention laws and policies:
(i) Forthwith upon receipt of termination notice cease and desist from using the
applicable Products and
(ii) Certify to Licensor that the Licensee has destroyed the Product and all Confidential
Information, or has returned to Licensor the Products and all copies made thereof.
This requirement applies to copies in all forms, partial and complete, in all types of
media and computer memory and whether or not modified or merged into other
materials. In the event of such merging or modification the merged or modified
form of the Products shall also be subject to the provisions of this clause and shall
be destroyed or returned to the Licensor pursuant to the terms hereof. To the extent
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necessary to implement the termination provisions of this License Agreement, each
of the parties waives any right it has, or obligation that the other party may have,
now or in the future under any applicable law or regulation, to request or obtain the
approval, order, decision or judgment of any court to terminate this License
10 Export Restrictions:
Licensee acknowledges that the Software is subject to India export jurisdiction. Licensees
agree to comply with all applicable international and national laws that apply to the Software,
as well as end-user, end-use, and destination restrictions.
11 General Provisions
11.1 Applicable Law and Jurisdiction
This License Agreement shall be construed, interpreted and applied in accordance with, and
shall be governed by, the laws of the State of Texas. Nothing herein shall be construed to
waive the sovereign immunity of the State of Texas.
Notices shall be in accordance with Section 11.A. of the DIR Contract No. DIR-SDD-875.
All notices, including notices of address change, required to be sent hereunder shall be in
writing and shall be deemed to have been given when mailed by first class mail or personal
delivery (including overnight mail by private carrier) to the Licensees or Licensor’s address
mentioned above as the case may be. To expedite order processing, Licensee agrees that
Licensor may treat documents legibly faxed by Licensee to Licensor as original documents;
nevertheless, either party may require the other to exchange original signed documents.
Whenever possible, each provision of this License shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of this License is held to be
invalid, illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or enforceability shall not affect any other provision or
any other jurisdiction, but this License shall be served, reformed, construed and enforced as
if such invalid, illegal or unenforceable provisions had never been contained herein.
If either party does not exercise, or delays exercising, a right or remedy provided by this
License Agreement or by law, that failure or delay will not amount to a waiver of that right
or remedy by that party. The fact that a party does exercise a right or remedy provided by
this License Agreement or by law does not prevent that party from exercising that right or
remedy again, or exercising another right or remedy.
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The right which each of the Parties has under this License shall not be prejudiced or
restricted by any indulgence or forbearance extended to another party. No waiver by any
party in respect of a breach shall operate as a waiver in respect of any subsequent breach.
Any payment due for the License fees payable under this Agreement and Proprietary &
Confidential information clause, Indemnity, warranties, remedies clause, limitation of liability
clause, non-Solicitation clause of this Agreement and by their nature shall survive the
termination of this Agreement.
No amendments, waivers or modification hereof shall be made or deemed to have been
made unless made in writing and executed by the Party to be bound thereby.
11.7 Entire Agreement
The DIR Contract No. DIR-SDD-875 and this Agreement (including schedules and any
addenda hereto signed by the parties) contain the entire agreement of the parties with
respect to the subject matter of this License Agreement and supersede all previous
communications, presentations, understandings and agreements, either oral or written,
between the parties with respect to said subject matter, except as provided in Section 7. No
representations, warranties and certifications, express or implied, shall exist as between the
Parties except as stated herein. In the event of a conflict between tnis Agreement and the
DIR Contract No. DIR-SDD-875, the DIR contract controls.
11.8 Force Majeure
Force Majeure shall be in accordance with Section 10.C. of Appendix A of the DIR Contract
Dispute Resolution shall be in accordance with Section 10.A. of Appendix A of the DIR
Contract No. DIR-SDD-875.
Licensor, or Licensor’s designated agent, may, upon five (5) days prior written notice to
Licensee, inspect any License facility where Products are used and audit records for the
purpose of confirming Licensee’s compliance with this License Agreement. Licensor shall
perform only one audit per six (6) month period unless a previous audit reveals a
discrepancy. Licensor’s audit shall be performed at Licensor’s sole expense; provided however
that if, as a result of Licensor’s audit, it is determined that Licensee owes Licensor additional
fees, then Licensee shall bear the reasonable cost of Licensor’s audit and pay all past-due fees
in accordance with the terms of this Agreement. This Section survives termination of this
Agreement for two (2) years.
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IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS END-USER
LICENSE AGREEMENT AS OF THE DATE FIRST ABOVE WRITTEN.
For Exensys Software Solutions Ltd
(Authorized Signatory) (Authorized Signatory)
Date: _ _ /_ _ /_ _ _ _ Date: _ _ /_ _ /_ _ _ _
Place:_ _ _ _ _ _ _ _ _ _ Place: _ _ _ _ _ _ _ _ _ _
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