| |
| Projistics BugTracker Licensing Agreement |
This document is a legal agreement ("Agreement") between you (either an
individual or a single entity) and Projistics Inc., registered under the law of
State of Delaware (referred henceforth as "Projistics") for the monthly lease
of Projistics BugTracker ("Software"), located at a Projistics authorized data
center. YOU SHOULD READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE YOU
USE PROJISTICS' PROPRIETARY PROJISTICS SOFTWARE. USING THE SOFTWARE IMPLIES
THAT YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE
WITH ANY OF THE TERMS OF THIS AGREEMENT, YOU MUST DISCONTINUE THE USE OF THIS
SOFTWARE IMMEDIATELY.
|
| |
| 1. DEFINITIONS |
| "License Key" means a unique code provided by Projistics which identifies you
and which enables and / or unlocks certain features of the Software. "Software"
means Projistics BugTracker application hosted at a Projistics authorized data
center, the License Key and any and all updates thereto, together with all
associated documentation. When used in this Agreement, "Projistics" means
Projistics Inc., and the words "You" and "Your" mean the party purchasing a
license to use the Software. |
| |
| 2. TERM AND RENEWAL |
| The term of this Agreement shall be monthly. This Agreement shall be considered
by both parties to be automatically renewed for an additional term upon receipt
by Projistics of Your payment of the latest monthly renewal fee associated with
the term for which you are renewing. |
| |
| 3. SERVICE |
Access. The Software is licensed, not sold, to you, as a hosted
application at Projistics Data Center for use only under the terms of this
Agreement, and Projistics reserves all rights not expressly granted to you in
this Agreement. For each License Key provided to you by Projistics, you are
granted a nonexclusive license to provide the Software access to the number of
users indicated by the License Key, for the sole purpose of using the Software.
The users could be your employees or employees of your business partner
companies. If a License Key contains an expiration date and Package Type of
license is "Trial", it is considered temporary, and multiple users may use it
for the sole purpose of evaluating the Software.
Upgrades. During the term of this agreement, if Projistics
upgrades the version of the Software you are using under this Agreement, you
will not be charged an upgrade fee. Should Projistics offer additional optional
software modules in the future that complement the Software, You may elect to
purchase the optional software modules for an additional fee, however, You have
no obligation to do so.
Disk Space. Each user as defined in the License Key will be
provided 0.05 GB of disk space on the hosted server.
No Title. This license confers no title or ownership in the
Software and is not a sale of any rights in the Software. This Software is
owned by Projistics and is protected by copyright law and international
copyright treaty.
|
| |
| 4. SUPPORT |
| During the term of this Agreement, Projistics agrees to provide you with email
and telephone access to our Projistics Support Center during our standard
support hours of Monday - Friday, 9:00 AM - 6:00 PM (Pacific Standard Time)
except for standard U.S. Business Holidays. If your organization/company has
more than one Projistics login, You agree to appoint an Authorized Support
Contact who will contact the Projistics Support Team directly on behalf of Your
other Projistics users. You may purchase additional Authorized Support Contacts
for an additional fee. |
| |
| 5. PRIVACY |
Ownership of Data. Projistics considers the information and
data you maintain on our Projistics BugTracker application to be your personal
property. As a policy, we do not examine your information and data except at
your request and only for the purposes of providing you with technical support
with regard to a particular problem you face. Projistics will not use your
information for Projistics' benefit or the benefit of a third party, for
example for: solicitation, aggregating mailing lists, or conducting opinion
mining.
Analysis. Projistics reserves the right to perform statistical
analysis of all of our web sites and our application. We do this to measure the
effectiveness of our software, to optimize website performance, and to ensure
license compliance.
|
| |
| 6. RESTRICTIONS ON USE AND TRANSFER |
| You may not sublicense, rent, lease, assign or otherwise transfer the Software
or any rights thereto, either in whole or in part, to anyone else. Use of the
Software with a License Key obtained from a source other than Projistics or its
authorized resellers is expressly and strictly forbidden. Projistics reserves
the right to take any and all actions that Projistics, in its sole discretion,
deems necessary to protect against, monitor and control the use of the Software
with illegal License Keys. You agree to ensure that anyone who uses any portion
of the Software provided to you complies with the terms and conditions of this
Agreement.
|
| |
| 7. INTELLECTUAL PROPERTY RIGHTS |
| You acknowledge that the Software contains copyrighted material, trade secrets,
trademarks and other proprietary material of Projistics, and is protected under
United States and international copyright law and other applicable laws. You
may not engage in any unauthorized use or disclosure of any Confidential
Information. You agree that the source code of the Software is confidential and
proprietary to Projistics. You may not reverse engineer, de-compile, or
disassemble the software, except and only to the extent that such activity is
expressly permitted by applicable law notwithstanding this limitation. |
| |
| 8. SERVICE LEVEL COMMITMENT |
Projistics endeavors to ensure that the Projistics ASP website is available 95%
of any Month. Projistics will also provide nightly backups of Customer data in
the unlikely event that emergency recovery is required. You have the ability to
download your data on demand for additional backup security and Projistics
strongly encourages you to do so.
In the event that Projistics ASP Site Availability falls to below 95% for a
given month for You, Projistics will credit Your account as follows: for 90% to
94.9% availability the credit is 50% of the monthly fees; for 89.9%
availability or below the credit is 100% of the monthly fees. This credit will
be in the form of partially extending the Term of this Agreement and will not
result in a refund of any Customer fees due or previously paid.
You agree to notify Projistics immediately if You suspect the Projistics ASP
website is unavailable to You due to a fault of Projistics. You agree to
provide reasonable information as requested by Projistics for proper
diagnosis/repair and for proper calculation of any applicable credit.
Credit does not apply as a result of a) Unavailability due to Scheduled
Maintenance as defined below. b) Periods of unavailability during which Your
account is not in good financial standing or You are in violation of this
Agreement. c) Circumstances beyond Projistics' control including, without
limitation, acts of any governmental body, war, sabotage, embargo, fire, flood,
extended unavailability of Public Utility Service or unavailability or delay in
telecommunications, or third party Internet Service Providers. d) Your misuse
of the Projistics' ASP software.
Scheduled Maintenance shall mean any maintenance in the data center at which
Your Projistics ASP account is located. Projistics will notify You via email at
least 24 hours in advance of any scheduled maintenance. Projistics agrees to
make reasonable attempts to perform scheduled maintenance during historically
low use hours based on average use by its Customers. Projistics is permitted to
conduct emergency maintenance on an 'as needed' basis.
You agree to inform Projistics three (3) business days in advance when you
expect to experience unusual transaction activity relating to your use of the
Projistics ASP website. Unusual transaction activity would include, but is not
limited to, transactions that will exceed 100% of your total historical average
monthly transactions. Such notice should be made via email to
support@projistics.com and failure to give proper notice will result in a
waiver of credit remedy by you for any unavailability during said period.
Projistics reserves the right to amend the service level commitment from time to
time effective upon notice to you. In the event of any amendment resulting in a
material reduction of the service level commitments, you may elect to terminate
this Agreement without penalty by providing Projistics written notice of such
termination within 30 days following notice of such amendment. The service
level commitments set forth in this section constitute Your sole remedies for
any service level claims.
Projistics' records and data shall be the basis for all credit calculations and
determinations. Notwithstanding anything else to the contrary, the maximum
amount of credit in any calendar month under the Agreement shall not exceed the
Monthly Fee and/or Set up Fee which would have been charged for Projistics'
services for that period. |
| |
| 9. TIMELY PAYMENT |
| Except as otherwise agreed in writing and signed by an authorized officer of
both parties, all payments due to Projistics for Software shall be due and
payable in full within ten (10) days of receipt by You of a proper invoice. All
past due payments will accrue interest due at a rate of one and one-half
percent (1.5%) per month on the unpaid balance from the due date until paid in
full. Projistics may, at its option, elect to terminate this Agreement and
restrict Your access to the software for failure to pay any fees associated
with use of this software that are past due by more than sixty (60) days. |
| |
| 10. TERMINATION |
|
Either party may elect to terminate this agreement upon written notice to the
other party of a breach of obligations by that party regarding this Agreement
unless the breach is cured within 30days after such notice. All disclaimers of
warranties and limitations of liability shall survive any termination of this
Agreement. Not-withstanding the above either party may terminate the agreement
any time by giving the other party a 30day notice in writing. |
| |
| 11. WARRANTY |
Projistics cannot warrant that the Software will function in accordance with
related documentation in every combination of hardware platform, software
environment and Software configuration. You acknowledge that software bugs are
likely to be identified when the Software is used. You therefore accept the
responsibility of satisfying yourself that the Software is suitable for your
intended use.
Except as otherwise set forth in this agreement, the Software is provided to
you "AS IS", and Projistics makes no express or implied warranties whatsoever
with respect to its functionality, condition, performance, operability or use.
Without limiting the foregoing, Projistics disclaims all implied warranties
including, without limitation, any implied warranties of merchantability, and
fitness for a particular purpose or freedom from infringement. Some
jurisdictions do not allow the exclusion of implied warranties, so the above
exclusions may not apply to you. This limited warranty gives you specific legal
rights, and you may also have other rights that vary from one jurisdiction to
another. |
| |
| 12. LIMITATIONS OF LIABILITY |
| In no event shall Projistics be liable for any damages of any type, whether
direct or indirect, consequential, incidental or special damages, including
without limitation, lost revenues, lost profits, losses resulting from business
interruption or loss of data, regardless of the form of action or legal theory
under which such liability may be asserted, even if Projistics has been advised
of the possibility or likelihood of such damages. Projistics shall have no
liability with respect to any data that is read, accessed, stored or processed
with the software, or for the costs of recovering any such data. Some
jurisdictions do not allow the limitation or exclusion of liability for
incidental or consequential damages, so the above limitation or exclusion may
not apply to you. IN ANY CASE, PROJISTICS' ENTIRE LIABILITY UNDER ANY PROVISION
OF THIS LICENSE AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU
FOR USE OF THE SOFTWARE. |
| |
| 13. INDEMNIFICATION |
| You agree to defend, indemnify, and hold Nagarro and all of its employees,
agents, representatives, directors, officers, partners, shareholders,
attorneys, predecessors, successors, and assigns harmless from and against any
and all claims, proceedings, damages, injuries, liabilities, losses, costs, and
expenses (including reasonable attorneys' fees and litigation expenses),
relating to or arising from your use of the Software, or any breach of this
Agreement, except to the extent such claim relates to or arises from a
violation by Nagarro of any third party copyright, trademark, trade secret or
other intellectual property right. |
| |
| 14. EXPORT |
| You agree that you will not export or transmit the Software or any
Applications, directly or indirectly, to any restricted countries or in any
manner that would violate United States laws and regulations as shall from time
to time govern the license and delivery of technology abroad by persons subject
to the jurisdiction of the United States government, including the Export
Administration Act of 1979, as amended, and any applicable laws or regulations
issued thereafter. |
| |
| 15. RESERVATION OF RIGHTS AND OWNERSHIP |
| Nagarro reserves all rights not expressly granted to you in this Agreement. The
software is protected by copyright and other intellectual property laws and
treaties. Nagarro or its suppliers own the title, copyright, and other
intellectual property rights in the software. THE Software IS LICENSED, NOT
SOLD. |
| |
| 16. MISCELLANEOUS |
| If any provision of this Agreement is held to be invalid or unenforceable under
any circumstances, its application in any other circumstances and the remaining
provisions of this Agreement shall not be affected. No waiver of any right
under this Agreement shall be effective unless given in writing by an
authorized representative of Nagarro. No waiver by Nagarro of any right shall
be deemed to be a waiver of any other right of Nagarro arising under this
Agreement. This Agreement is solely between you and Nagarro and shall not be
construed to create any third party beneficiary rights in any other individual,
partnership, corporation or other entity. This Agreement shall be governed by
and interpreted in accordance with the laws of the State of California, without
regard to its provisions governing conflicts of law. Any and all disputes
between you and Nagarro pertaining to this Agreement shall be submitted to one
arbitrator in binding arbitration within ten miles of San Jose in accordance
with the Commercial Rules of the American Arbitration Association ("AAA"). The
arbitrator shall be experienced in computer consulting, the development of
custom software, the sale of packaged software, or related services. If you and
Nagarro do not agree on an arbitrator within sixty (60) days of the institution
of the arbitration, the arbitrator shall be chose by AAA. Evidence and argument
may be presented in person or by telephone, fax, postal mail, electronic mail,
and other methods of communication approved by the arbitrator. The prevailing
party in such proceeding shall be entitled to recover its actually incurred
costs, including reasonable attorney's fees, arbitration and court costs. All
hearings shall be held and a written arbitration award issued within one
hundred eighty (180) days of the date on which the arbitrator is appointed.
Judgment on the award shall be final and binding and may be entered in any
court of competent jurisdiction. |
| |
| 17. ENTIRE AGREEMENT |
| You agree that this agreement is the complete and exclusive statement of the
agreement between you and Nagarro, and that it supersedes any proposals or
prior agreements, oral or written, and any other communications relating to the
software and the subject matter hereof. Nagarro shall not be bound by any
provision of any purchase order, receipt, acceptance, confirmation,
correspondence or otherwise, or by any agreement between you and any other
party, unless Nagarro specifically agrees to such provision in writing. No
vendor, distributor, provider, reseller, OEM, sales representative, or other
person is authorized to modify this agreement or to make any warranty,
representation or promise regarding the software which is different from those
set forth in this agreement
|
| |
|
|
|
|