TRIAL LICENSE STANDARD LEGAL TERMS ("TRIAL LICENSE TERMS")
These Trial License Terms govern the Licensee's access to and use of the Software Product during the Trial Period. Licensee's access to, and use of the Software Product is conditioned on Licensee's acceptance of and compliance with the terms set out under these Trial License Terms.
These Trial License Terms along with the Documentation constitute a legally binding and enforceable agreement between Licensee and Rakuten India Enterprise Private Limited (hereinafter referred to as the "Company" and an electronic record under the IT Act and the amended provisions pertaining to electronic records under various Indian statutes.
1. TRIAL LICENSE
- This license for the Software Product shall be valid for a period of thirty (30) days from the date of acceptance of these Trial License Terms by the Licensee ("Trial Period"). Upon expiry of the Trial Period, the Licensee may license the Software Product by entering into a detailed SaaS agreement with the Company.
- The Company hereby grants to the Licensee for the Trial Period, on a free of cost, trial basis, a limited, revocable, non-exclusive, non-transferable, non-assignable and non-sub licensable, license to access and use the Software Product, in accordance with the then-technical and functional documentation for the Software Product, including, but not limited to, configuration workbooks or release notes, terms of service and policies, as applicable (collectively, "Documentation"). The Licensee shall use the Software Product solely for (i) the Licensee's lawful internal business operation pertaining to capturing of data from IT infrastructure, aggregating it into a single database, analyzing the data to detect patterns and trends and presenting actionable insights in a human-readable format and (ii) for use by the registered users who sign up during the Trial Period, subject to any limitations or restrictions outlined in the Trial License Terms, and not exceeding the scope defined therein. The Licensee shall not be authorized to: (i) use the Software Product to provide any service to a third party, and/or (ii) provide direct access to the Software Product to any third party.
- During the Trial Period, the Company shall also provide to the Licensee such maintenance and support services in relation to the Software Product as are customarily provided by the Company during the free trial offering of the Software Product.
- The Licensee acknowledges that (a) certain third-party components may be incorporated in or with the Software Product which are subject to various "open source" or "free software" licenses, (b) the Software Product may contain links to external websites, and (c) the Software Products may be hosted on third party servers, computing services or platforms (collectively, "Third-Party Components"). Licensee's access and use of such Third-Party Components shall be subject to the terms and conditions of such Third-Party Components and Company shall not be liable for any defects of faults therein.
- The Company may change or modify the Software Product, or any features, specifications, capabilities, functions, licensing terms, release dates, general availability, or other characteristics thereof and may also discontinue or remove any feature or element of the Software Product or any Third Party Components comprised in the Software Product and may also include patches and updates in the Software Product at its own discretion.
2. PERMITTED USERS
The Licensee will permit only such number of users to access and use the Software Product during the Trial Period as may be agreed between the Parties in writing ("Users") and shall ensure that all such permitted Users adhere to the provisions of this Trial License Terms and the relevant Documentation. Licensee will be solely responsible for the acts and omissions of all Users. The Company shall have the right to block respective Users from accessing the Software Product in cases of breach of the terms of usage of the Software Product or violation of applicable law.
3. LICENSEE DATA
- The Company shall have the right to use any data, content, materials provided / input by the Licensee into the Software Product ("Licensee Data") for and to the extent necessary for the Company to provide its services and to manage or provide the Software Product, and to drive any improvements in the Software Product. Licensee agrees that it has made necessary disclosures to the Users and has collected and shall maintain and handle all Licensee Data in compliance with all applicable laws and commercially reasonable security standards for its Users' use of the Software Product.
- The Company may include the Licensee's name and logo in its lists of customers, its public website and other promotional material, in each case in accordance with any brand guidelines to the extent made available to the Company by the Licensee. The Company agrees to cease such uses of the Licensee's name and logo within thirty (30) days following a written request submitted by the Licensee to the Company.
4. INTELLECTUAL PROPERTY
Except as provided in Clause 1.4 (Third Party Components), the Company owns all right, title and interest in any and all copyrights, trademark rights, patent rights, and other intellectual property rights in the Software Product and Documentation, and any materials produced by the Company including any content, materials, data or information that is generated by the Licensee or the Users from using the Software Product and any application programming interfaces, improvements, design contributions or derivative works thereto. All rights not expressly granted to Licensee in this Trial License Terms are reserved solely by the Company. Any of the Licensee's pre-existing designs, data processes, API's, plug-ins and Licensee Data shall be the sole and exclusive property of the Licensee. The ownership of any and all intellectual property rights in and to any feedback provided by the Licensee or its Users, shall vest solely and exclusively with the Company at all times.
5. REPRESENTATIONS AND WARRANTIES
Each Party hereby represents and warrants that:
- it has the full power, capacity and authority to execute, deliver and perform this Trial License Terms and has taken all necessary action (corporate, statutory or otherwise) to execute and authorize the execution, delivery and performance of this Trial License Terms;
- this Trial License Terms has been duly and validly executed and delivered by it and constitutes a legal and binding obligation, enforceable against it in accordance with its terms; and
- to the best of its knowledge, there are no legal, quasi-legal, administrative, or other proceedings, claims, actions, governmental investigations, orders, judgments, or decrees of any nature made, existing, threatened, anticipated or pending against it or any obligation, act, omission or transaction contemplated hereunder.
6. TERMINATION
The Company may terminate this Trial License Terms at any time with or without assigning any reasons by a giving a written notice of termination to the Licensee, effective on the date of such notice. Upon such termination, the Licensee shall immediately return to Company all information in its possession relating to the Software Product and/or the Company's services, including all related Documentation and any copies thereof.
7. DISCLAIMER
THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES IN RELATION TO THE SOFTWARE PRODUCT INCLUDING THE WARRANTY OF NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT OPERATIONS OF THE SOFTWARE PRODUCT OR THE NETWORK AND THIRD-PARTY SERVICES TO WHICH THE SOFTWARE PRODUCT ARE CONNECTED WILL BE ERROR FREE OR UNINTERRUPTED OR THAT PROGRAMMING ERRORS IN THE SOFTWARE PRODUCT CAN BE FOUND IN ORDER TO BE CORRECTED. EXCEPT FOR THE WARRANTY THAT THE COMPANY HAS THE NECESSARY RIGHTS TO PROVIDE THE OPEN SOURCE AND THIRD-PARTY SOFTWARE TO THE LICENSEE PURSUANT TO THE TRIAL LICENSE TERMS, THE COMPANY DISCLAIMS ALL WARRANTIES WITH RESPECT TO OPEN SOURCE AND THIRD-PARTY SOFTWARE AND MATERIAL. ALL OPEN SOURCE AND THIRD-PARTY SOFTWARE AND MATERIAL ARE PROVIDED ON AN "AS IS" BASIS.
8. INDEMNITY AND LIMITATION OF LIABILITY
- The Licensee shall for itself and on behalf of the Users, fully indemnify the Company and its affiliates against all losses, damages and claims (including third party claims), suffered by the Company arising out of or related to (i) any use of the Software Product by the Licensee or the Users in violation of this Trial License Terms or Documentation or any applicable law or in infringement of the rights of a third party; or (ii) the collection and storage of Licensee Data, in breach of this Trial License Terms or violation of applicable laws.
- Notwithstanding anything herein to the contrary, under no circumstances and regardless of the nature of any claim, shall the Company or its affiliates or licensors be liable to Licensee or any other person or entity under this Trial License Terms, for an amount of damages in excess of $50. Parties shall not be liable for any special, incidental, consequential, or indirect damages, loss of goodwill, loss of revenues or business profits, loss of data, work stoppage or for exemplary or punitive damages, arising out of, or relating to this Trial License Terms even if a Party has been advised of the possibility of such damages.
9. CONFIDENTIALITY
Confidential Information shall not be used or reproduced in any form except as required to accomplish the intent of this Trial License Terms. Any reproduction of any Confidential Information of the other Party shall remain the property of the disclosing Party. With respect to the Confidential Information of the other, each Party take such steps as it takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care; and shall not disclose any Confidential Information of the other to any person other than individuals whose access is necessary to enable it to exercise its rights and/or perform its obligations hereunder and who are under obligations of confidentiality substantially similar to those set forth herein. For the purpose of this Clause "Confidential Information" shall mean information which the disclosing party protects against unrestricted disclosure to others that (i) the disclosing party or its representatives designates as confidential at the time of disclosure; or (ii) should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure; including, without limitation, information about or concerning any third party that is disclosed to the receiving Party under this Trial License Terms.
10. FORCE MAJEURE
The Company shall not be considered to be in default of performance of its obligations under the terms of this Trial License Terms or for indemnification provided for hereunder, if such performance is prevented or delayed for any cause beyond the reasonable control of the Company, including denial-of-service attacks, hacker attacks, virus or other malicious software attacks or infections, failure of Company's hosting provider, war, hostilities, revolution, riots, civil commotion, strikes, lockouts, epidemic, pandemic, lockdowns, fire, explosion, act of God, any act of Government, espionage, network or internet failure or failure of electronic transmission, default or failure of/ by any third party or any other cause beyond the control of the concerned Party ("Force Majeure Event").
11. GOVERNING LAW AND JURISDICTION
These Trial License Terms shall be governed by, and construed in accordance with, the laws of India and the Parties submit to the exclusive jurisdiction of courts in Bengaluru, India.
12. DATA PROCESSING AGREEMENT / SECURITY
The Company shall implement and maintain appropriate technical and organizational measures to protect the personal data processed by the Company as part of the Software Product described in the Data Processing Addendum.
13. RESELLER
To the extent the Software Products are availed by the Licensee through an authorized reseller, the Licensee agrees and acknowledges that the use of the Software Products and provision of Services to the Licensee shall be governed under this Trial License Terms and the reseller shall not be authorized to modify the Trial License Terms or make promises and/or commitments on behalf of the Company. The Company is not a party to the agreement between the Licensee and reseller and shall not be responsible for or bound by the terms of such agreement.
14. MISCELLANEOUS
The Licensee shall not use, export, import, or transfer any part of the Software Products except as authorized by applicable law, or the laws of the jurisdiction in which Licensee uses or accesses the Software Products. Licensee shall comply with anti-bribery, anti-corruption, prevention of money laundering and the financing of terrorism, including the (Indian) Prevention of Corruption Act 1988, and all other applicable anti-bribery laws (collectively, "Anti-bribery Laws"). Licensee shall also comply with all business codes of conduct of the Company including but not limited to the "Code of Business and Ethics" available at The Rakuten Group Code of Ethics and any other policies that may be introduced by the Company from time to time. No term or provision hereof will be deemed waived, and no variation of terms or provisions hereof shall be deemed consented to, unless such waiver or consent be in writing and signed by the party against whom such waiver or consent is sought to be enforced. Further, waiver by any party of any default or breach of any term or condition of the Trial License Terms at any one instance shall not be deemed or construed to be a continuing waiver of the default or breach of such term for a subsequent breach thereof. Any amendments to these terms shall be in writing and signed by the parties. All provisions hereof which by their very nature are intended to survive the expiry of the Trial License Terms will survive such expiry. The relationship between Parties is on a principal-to-principal basis, and nothing in the Trial License Terms will be construed as creating a partnership, agency, or employment relationship. In case of any conflict between the Trial License Terms and the Documentation, the terms of this Trial License Terms shall prevail. In case of any conflict between the terms of the Trial License Terms and the terms of the Order Form, the terms of the Order Form shall prevail. The Licensee shall not be entitled to assign the Trial License Terms to any person; however, the Company may license, sub-license, transfer and/or assign the whole or any part of the Trial License Terms and its rights and obligations to any person. All notices and communications between the parties shall be in writing in English language and shall be sent to the respective address of the Parties as mentioned hereinabove.