By clicking on the "I Accept" option while installing, downloading, copying or using the Software, You agree to the terms and conditions of this Agreement.
YOU AGREE THAT YOUR USE OF THE SOFTWARE ACKNOWLEDGES THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
This Software End User Agreement (this “Software License”) is made By and Between Jobtech Consultancy Private Limited, a company incorporated under the Companies Act, 1956, having its registered office at 8 Camac Street, Santiniketan Building, 5th Floor, Suite No.503, Kolkata-700017, hereinafter called the “Jobtech” (which expression shall unless excluded by or repugnant to the subject or context, be deemed to mean and include its successors and permitted assigns) And You, a physical person or legal entity hereinafter called the, “End User” (which expression shall unless excluded by or repugnant to the subject or context, be deemed to mean and include its successors, legal representatives and permitted assigns).
NOW IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS:
The following terms shall have the following meanings:
“Documentation” shall mean any available installation, operating instructions, the user guides, manuals and other technical literature pertaining to the Software licensed by Jobtech to the End User under this Software License.
“Software” shall mean (i) the computer software in digitally encoded machine readable “object code” form received by End User from Jobtech; (ii) any extracts from such software, derivative works of such software, or collective works constituting such software (such as subsequent releases) to the extent offered to End User under this Agreement; and (iii) the Documentation
2.1 Subject to the terms and conditions herein, the End User is hereby granted a terminable, non-exclusive, non-transferable license to use the Software only for its internal business purposes and only as specifically permitted under this Software License and described in the Documentation.
2.2 This Software License does not entitle the End User to receive upgrades, updates, technical support or maintenance from Jobtech except as provided in this Agreement.
2.3 This Software License has been granted to the End User, subsequent to the End User testing the Software and accepting the same.
3.1 The End User shall not by itself or allow or permit its employees, representatives, or agents to, (i) duplicate or copy the Software (or any portion thereof) except for reasonable backup or archival copies; (ii) modify, translate, reverse engineer, decompile or disassemble the Software or create derivative works based on the Software or any related materials; (iii) sell, assign, lease, sublicense, or transfer to, or allow, any third party to use, the Software. The End User shall not use the Software for third-party training, commercial time sharing, rental, service bureau or any other similar use.
3.2 Backup copy of the Software allowed pursuant to this Software License, whether complete or partial, shall bear the same copyright notices and restrictive legends, if any, as are included in the Software delivered to End User. All backup copies shall be the sole and exclusive property of Jobtech and shall be subject to the terms and conditions of this Software License.
3.3 Each copy of the Software allowed pursuant to this Agreement, whether complete or partial, shall bear the same copyright notices and restrictive legends, if any, as are included in the Software delivered to End User. All copies shall be the sole and exclusive property of Jobtech and shall be subject to the terms and conditions of this Agreement.
3.4 Any supplemental software code provided to the End User as part of the Support Services shall be considered part of the Software and subject to the terms and conditions of this Agreement.
3.5 Jobtech may provide the End User with support services related to the Software on mutually agreed terms and conditions for a separate cost which may include consultancy services, candidate assessments and/or candidate background verification.
4.1 In consideration of the grant of this license, the End User hereby agrees to pay Jobtech, license fee as per the purchase order placed with Jobtech (as mutually agreed and confirmed in writing by the Parties) as per the specific requirement of the End User and which is dependent upon on number of users required, number of job posts required, the advertisements required and the time period it is bought for.
4.2 Except as provided herein, the said Work Order shall be part and parcel of this Agreement and be subject to the terms and conditions of this Agreement.
5.1 Jobtech warrants that it has the full power and authority to grant this Software License to the End User. This Software License shall not breach any oral or written agreement with any third party or any obligation owed by Jobtech to any third party to keep any information or materials in confidence or in trust.
5.2 Jobtech will not knowingly introduce any malicious software into the End User’s computer, networking or communications systems by means of the Software or through any Deliverables;
Jobtech hereby excludes and disclaims all warranties, whether expressed or implied, statutory or otherwise, except those warranties expressly made in Clause 5 above, including -
i. any implied warranties of satisfactory quality, no latent defects, merchantability and fitness for a particular purpose;
ii. all warranties in respect of third party software applications provided pursuant to the agreement and any order.
i. It has not been induced to enter into this Software License by any prior representations, warranties or guarantees (whether oral or in writing), except as expressly contained in this Software License;
ii. by obtaining grant of this Software License, the End User is not acting in breach of any agreement to which it is a party.
8.1 In no event will Jobtech be liable for (i) lost profits, lost data or lost use, or any other incidental or consequential damages, or for any indirect, special, or punitive damages regardless of the form of action, whether contract, tort (including negligence), strict product liability or otherwise, even if Jobtech or any third party licensor has been advised of the possibility of such damages; (ii) damage caused by end user's failure to perform its responsibilities; (iii) repairs, servicing or alterations to the Software done without the written approval of Jobtech; or (iv) use of the Software in a manner which is not authorized by this Software License; or (v) computer failure or malfunction; or (vi) costs of procuring substitute software or services, whether or not foreseeable, even if the exclusive remedies provided by this agreement fail of their essential purpose and even if either party has been advised of the possibility or probability of such damages.
8.2 Regardless of whether the claim for such damages is based in contract, tort and/or any other legal theory, in no event shall Jobtech’s aggregate liability to the End User for direct damages under this agreement or in connection with its subject matter exceed the amount of total fees paid or payable by End User for the Software.
The Software is licensed “as is” and Jobtech hereby disclaims any and all warranties, whether express or implied, including the implied warranties of merchantability, non-infringement and fitness for a particular purpose.
The End User assumes responsibility for its use of the Software and Jobtech assumes no responsibility for functional failure of the Software, resulting from accident, abuse or misapplication of the same. If the End User modifies or causes modification to be made to the Software without the prior written consent of Jobtech, the End User shall indemnify and hold Jobtech harmless against damages, costs and expenses (including, without limitation, reasonable attorney’s fees and costs of suit) resulting from the defense and settlement of any claim by a third party arising from End User’s use of the Software as modified violates, infringes, or misappropriates any patent, copyright, or any other intellectual property rights of such claiming party.
11.1 Jobtech shall defend and indemnify and hold End User harmless against any action brought against End User to the extent that it is based on a claim that the Software, when properly used within the scope of this Software License, infringes an Indian copyright or patent published as of the date hereof or any trade secret, provided the End User notifies Jobtech promptly in writing of the action and gives Jobtech the sole control of the defense, all negotiations and any settlement. If the Software becomes, or is likely to become, the subject of an infringement claim, Jobtech shall secure the End User’s right to continue using the Software or replace or modify it to make it non-infringing with substantially similar functions and levels of performance. If neither of those alternatives is reasonably available, Jobtech may terminate this Software License and refund the cost of the Software paid by the End User to Jobtech.
11.2 Jobtech has no liability for any infringement claim: (i) based on the use of the Software with software, data, or equipment not supplied by Jobtech (ii) concerning the Software based on use of other than a then current unaltered release of the Software; or (iii) based on use of the Software in a manner which is not authorized by this Software License. The indemnification obligations of Jobtech shall terminate if the End User fails to perform its obligations under this Software License.
11.3 The End User shall indemnify Jobtech against all losses and expenses in connection with any proceeding arising out of (i) use of the Software, (ii) breach of the terms of this Agreement especially related to Proprietary Rights Confidentiality and/or (iii) unauthorized customization, modification, or other alterations to the Software, including claims that its customization, modification, or other alterations infringe a third party's Intellectual Property rights.
The license granted under this Agreement, may be granted under authority granted to Jobtech by one or more third party licensors. End User agrees that each such third party licensor is, to the fullest extent permitted by law, a third party beneficiary of this Agreement, including without limitation, the provisions concerning confidentiality, warranty disclaimers, and limitations of liability.
13.1 The End User acknowledges and agrees that Jobtech is the sole and exclusive owner of all rights, title, and interest, including intellectual property rights, in, to, and under the Software, the extracts and derivative works of such Software, all its upgrades, subsequent releases, modifications and all related computer programs, media, documentation and other materials. End User agrees not to remove, deface, or destroy any copyright, patent notice, trademark, service mark, proprietary markings or other legends placed on or within the Software.
13.2 The End User must treat and hold as confidential, all information which it may receive from Jobtech subsequent to this Software License, or which becomes known to it during the currency of this Software License. The confidential information of Jobtech shall include the Software and any associated material and Documentation, including information contained herein; all information relating to Jobtech’s past, present and future research development; Jobtech’s business activities, pricing, products, services, customers, as well as Jobtech’s technical knowledge and trade secrets.
14.1 This Software License shall be for an initial period of 1 (One) years, unless renewed thereafter by both the Parties, in writing.
14.2 Jobtech shall terminate this Software License, upon written notice of 90 days to the End User. However, in case the End User breaches any obligation under this Software License, including violation of the provisions of payment, Proprietary Rights or Confidentiality Jobtech shall have the right to terminate this Agreement immediately or after a lapse of 30 days notice by Jobtech to the End User to cure remedy and such default has not been cured.
14.3 The End User cannot terminate this Software License for a period of 1 (One) years (lock-in-period) from the date of this Software License.
14.4 Subject to Clause 14.3 above, the End User can terminate this Software License, by giving Jobtech notice of 90 days, in case Jobtech breaches any of its obligations under this Software License. This Software License shall terminate automatically upon the completion of the notice period, in the event Jobtech is unable to cure the breach within the notice period.
14.5 Termination or suspension under this Software License shall be without prejudice to any rights that may have accrued for either of the Parties before termination or suspension. All clauses which by their nature ought to survive the expiry or termination of this Software License, shall continue to survive.
On termination of this Software License, for any reason whatsoever, the End User shall, at its expense, return to Jobtech, the Software, Documentation and all materials furnished to the End User hereunder, and destroy in whole, all copies of the Software, including computer memory or media copies. An authorized personnel of the End User shall certify the foregoing to Jobtech in writing.
Any notice to be given hereunder shall be in writing and shall either be delivered personally or sent by registered post, telex, facsimile transmission, electronic mail or other means of tele-communication in permanent written form at their respective addresses or such other address, telex number, or facsimile number as may be notified by that Party to any other Party from time to time, and shall be deemed to have been made or delivered (i) in the case of any communication made by letter, when delivered by hand, by recognized international courier or by mail (registered, return receipt requested) at that address and (ii) in the case of any communication made by telex or facsimile, when transmitted properly addressed to such telex number or facsimile number. In case any Party changes its address, communication numbers, or directed attention as set forth above, it shall as soon as feasible, notify the other Party in writing.
17.1 This Software License shall be governed by, and construed in accordance with, the laws of India.
17.2 If any dispute or difference of any kind whatsoever shall arise between the Parties in connection with or arising out of this Software License, which the Parties are unable to settle amicably between themselves, then such disputes or differences shall be decided by a sole arbitrator to be mutually agreed upon by the Parties in accordance with the provisions of the Arbitration and Conciliation Act, 1996. The arbitration shall be held in Kolkata and English language shall be used in the arbitral proceedings. The Parties agree that the decision of the arbitral tribunal shall be final and binding upon the Parties. The costs of the arbitral tribunal shall be equally borne by both the Parties.
17.3 Subject to the above, the appropriate courts in Kolkata shall have exclusive jurisdiction in relation to any matter arising out of this Software License.
This Software License constitutes the entire agreement between the Parties, with respect to the subject matter hereof, and supersedes all previous proposals, agreements, arrangements, discussions and negotiations, whether written or oral, with respect to the subject matter hereof.
The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right.
No modification or amendment shall be effective unless in writing and signed by an authorized signatory of the End User and Jobtech.
Any provision of this Software License that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Software License or affecting the validity or enforceability of such provision in any other jurisdiction.