SOFTWARE END USER LICENSE AGREEMENT
THIS SOFTWARE END USER LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN Ilantus Technologies Private Limited(HEREINAFTER REFERRED TO AS “Ilantus”, “WE”, “US” OR “OUR”) AND ANY PERSON, COMPANY OR BUSINESS ENTITY WHO HAS LICENSED THIS SOFTWARE (HEREINAFTER REFERRED TO AS THE “CUSTOMER,” “YOU” OR “YOUR”)AND BY INSTALLING/ DOWNLOADING AND USING THIS SOFTWARE, THEREBY EXPRESSLY ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
This Agreement sets forth the terms that govern the Customer’s access and use of the Software. The software and documentation are owned solely and absolutely by Ilantus and is licensed to its licensors. Ilantus is willing to grant the Customer the right to access and use the Ilantus Software provided the Customer agrees to be bound by this Agreement. By activating the license key provided with the Software product, you acknowledge that you have read and understood the entire terms of this Agreement and that you agree to be bound by all of the terms and conditions of this Agreement. If Customer does not agree to the terms of this Agreement, Ilantus is unwilling to grant Customer any rights to use the Software or the Cloud Service. In such event, Customer may not use the Cloud Service, and Customer should promptly cease use of the Cloud Service and accompanying Documentation. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity and its affiliates.
Unless the context otherwise requires, Ilantus and the Customer hereinafter may be referred to individually as the “Party” and collectively as the “Parties.”
a. “Affiliate” means any entity that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with a party to this Agreement, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of such party. Customer shall notify Ilantus in writing of the identity of its Affiliates and shall be jointly and severally liable for such Affiliate’s performance of its obligations under this Agreement.
b. “As a Service” means access to the Cloud Service for specific services from the portfolio of services available in the product and billed as per usage.
c. “Cloud Service” means any on-line software service operated by Ilantus and accessible to Customer via the internet, specified on a Schedule.
d. “Cloud Service – Terms” means the Cloud Service terms attached hereto as Annexure – B, initially as in effect on the Delivery Date and as such document may be modified from time to time thereafter in accordance with its terms.
e. “Consulting or Professional Services Fees” means the fees charged to Customer by Ilantus for delivering Consulting and / or Professional Services.
f. “Delivery Date” means the date on which the notification of the start of the Cloud Service ordered under a Schedule is electronically sent by Ilantus to Customer.
g. “Distributor” means any independent distributor authorized by Ilantus to distribute Ilantus software and/or services to Resellers only, unless otherwise provided for in the applicable distribution agreement.
h. “Documentation” means user guides, documentation, and help and training materials, as updated from time to time, and which may be accessible online on our site Ilantus.com or through login to the applicable infrastructure(s) that the Free Trial Service may access.
i. “Local Software Components” means the downloadable software components necessary to utilize certain functionality of the Cloud Service that Customer may install on devices such as phones, tablets, PCs or Macs and any revisions, enhancements and new versions of such software components, made generally available by Ilantus for use with the Cloud Service, in each case in its machine-readable object code form.
j. “Micro Services” means a set of services offered by Ilantus that can be availed on separate or on collective basis and be charged based on usage.
k. “Reseller” means any independent value added reseller (VAR) authorized by Ilantus to distribute Ilantus software and/or services to Customer.
l. “Software:” means the Ilantus Product as detailed in the SOW which has been developed by Ilantus. Further, also includes any updates to such software which the Customer can download/install and corresponding documentation, associated media including digital images, stock photographs, clip art, fonts, sounds or other artistic works, printed materials, and online or electronic documentation. Any updates to such Software which the Customer is entitled to receive and that has been provided to the Customer by Ilantus shall also mean Software for purposes of this Agreement.
m. “Statement of Work (SOW)” shall have the meaning given to the activities performed for the customer as part of Consulting or Professional services that are provided to deliver desired solutions with or without Ilantus software.
n. “Subscription Fee” means the fee charged to Customer by Ilantus for the Cloud Service (including Technical Support) either for the Subscription Term or for the Micro services purchased. If Customer purchases the Cloud Service from a Reseller, Customer may pay the Subscription Fee to the Reseller and not to Ilantus directly.
o. “Subscription Term” means the period during which Customer is subscribed to the Cloud Service as set forth in this Agreement.
p. “Technical Support” means the services provided by Ilantus or its representative with each subscription at the level set forth as applicable under the Ilantus Technical Support terms specified from time to time. See Annexure – A: Cloud Services Support
q. “Third Party Software” means any software that is not owned by Ilantus that is identified in the Documentation and related Ilantus websites and user portals.
r. “User” means an employee, contractor, client or customer of Customer to whom Customer provides access to the Cloud Service, the number or other limitations of which are set forth on an applicable Schedule.
s. “User Account” means electronic credentials a User uses to access to the Cloud Service.
i. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement.
ii. As used in this Agreement, the word “including” means “including but not limited to.”
1. License Grant and Restrictions.
1.1 License. Subject to the terms and conditions hereof, Ilantus grants the Customer a limited, non-exclusive, non-transferable non-assignable non sub-licensable right for the specified duration to install and use the Software, as more fully detailed in the SOW, in object code format, or over the Cloud Service solely for the Customer’s internal use and to use the license to manage the number of devices for which Customer has subscribed, and have the number of Users for which Customer has subscribed, use the licenses in accordance with the terms of the Documentation and this Agreement. The term of such license shall be the Subscription Term or the partial services purchased by Customer.
1.2 Purchase over online Marketplace Platforms. The terms of this paragraph shall apply to the Cloud Service purchased on Online Marketplace Platforms. Ilantus and Customer acknowledge that Ilantus is solely responsible for providing the Cloud Service and Technical Support services as set forth herein and the Marketplace platform provider has no obligation to furnish any such services to Customer. To the maximum extent permitted by applicable law, Marketplace platform provider will have no warranty obligation to Customer with respect to the Cloud Service and any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to the warranties set forth in this Agreement and shall be Ilantus sole responsibility. Ilantus and Customer acknowledge that Ilantus, not Marketplace platform provider, is responsible for addressing any claims of Customer or any third party relating to the Cloud Service or Customer’s possession and/or use of the Cloud Service. In the event of any third party claim that the Cloud Service infringes the third party’s intellectual property rights, Ilantus and Customer acknowledge that Ilantus, not Marketplace platform provider, will be solely responsible for the investigation, defense, settlement and discharge of any such infringement claim subject to Section 4 of this Agreement. Ilantus and Customer acknowledge and agree that Marketplace platform provider and their subsidiaries are third party beneficiaries of this Agreement and that upon Customer’s acceptance of the terms and conditions of this Agreement, Marketplace platform provider will have the right (and will be deemed to have accepted the right) to enforce the Agreement against Customer as a third party beneficiary thereof. Additional terms and conditions pertaining to Cloud Services are enclosed as Annexure – B: Cloud Services Terms.
The Marketplace platform provider for this Agreement shall be Amazon Web Services (AWS).
1.3 Local Software Components. Subject to the terms and conditions of this Agreement and payment of the applicable Subscription Fee, Ilantus grants Customer a worldwide, non-exclusive, non-transferable license, without the right to sublicense and (except as otherwise provided on a Schedule) solely for its own business operations, to install on and use the Local Software Components to manage the number of devices for which Customer has subscribed, and have the number of Users for which Customer has subscribed use the Local Software Components in accordance with the terms of the Documentation and this Agreement. The term of such license shall be the Subscription Term or the number of “As a Service” units purchased by Customer. Customer may reproduce the Local Software Components and Documentation only as necessary to use the Cloud Service. Customer shall ensure that each copy contains all titles, trademarks, and copyright and restricted rights notices as in the original. Customer shall implement all commercially reasonable measures to ensure that its Users comply with the restrictions and limitations of this Agreement
1.4 License for “Special Use”. In the event that the Cloud Service is licensed only for “Special Use”, the terms of this paragraph shall apply. Ilantus hereby grants Customer a personal, non-exclusive, non-transferable license, without right of sublicense, to use the Cloud Service commencing on receipt of notification of access to the Cloud Service. The Cloud Service licensed for Special Use may include special features that require additional fees and conditions to use. The Cloud Service may employ a restriction mechanism, which restricts the program to a limited working time, a specific set of features and/or a specific number of Users or devices. This restriction mechanism and the manner in which it enforces the restriction is maintained in confidence by Ilantus for internal use only, and Customer may not publish, disclose or reveal it. Customer agrees not to do anything to circumvent or defeat the restriction mechanism. Ilantus may waive some of the restrictions under, Sections 4 (Intellectual Property Indemnity), 7 (Indemnity) and 10 (Software use verification) under Special Use license.
1.5 Software Upgrade. This Agreement will govern any software upgrades provided at an additional cost by Ilantus that replace or supplement the Software, unless such upgrade is accompanied by a separate license in which case the terms and conditions of that Agreement will govern such license. The software upgrades shall be available to the Customer subject to the Customer procuring the Annual Maintenance Contract or Annual Subscription with Ilantus for the software maintenance and upgrades.
1.6 Restrictions. Except as expressly permitted under the Agreement, the Customer will not, and will not allow any third party to: (a) copy the Software or the Documentation accompanying the Software (except for one copy for backup and disaster recovery purposes or as described in the Documentation); (b) modify, translate, adapt, alter, or create derivative works from the Software; (c) merge the Software with any other software or documentation; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software; (e) distribute, sublicense, rent, lease or loan the Software to any third party; (f) use the Software for the business needs of another person or entity, including without limitation, providing outsourcing, service bureau, software as a service, commercial hosting, application service provider or on-line services to third parties; or (g) Customer shall not disclose the results of any performance, functional or other evaluation or benchmarking of the Cloud Service to any third party without the prior written permission of Ilantus. The Customer may not remove, alter or obscure any proprietary notice that appears on the Software or on any authorized copies.
2. Customer Obligations.
2.1 The Customer’s Obligations. In addition to any other obligations hereunder, the Customer shall: (i) be solely responsible for the accuracy, legality and integrity of the Customer information or data (“Customer Data”) submitted or used in connection with the Software, (ii) backing up the Customer Data in the event the Customer Data is corrupted or lost in connection with the Software, (iii) not submit, send or store any information other than the Customer Data in connection with the Software and not submit computer viruses, Trojan horse, time bombs, cancel bots or other computer programming routines that are intended to detrimentally interfere with the Software, and (iv) not take actions or omit to act in any way that would interfere with or disrupt the integrity or performance of the Ilantus Software. (v) The Software may be accessed and used by the Customer herself/ himself or the Customer’s employees, contractors and external users who are authorized by the Customer to use the Services on behalf of the Customer (“Users”). The Customer agrees and acknowledges that the Customer is responsible for all activities that occur under the Customer’s Users accounts. (v) any use or utilization of the Software shall not constitute infringement of national and/or international copyright, intellectual property, patent or trademark, nor do they infringe on the trade secrets or other proprietary rights of any party.
2.2 The Customer’s Representation. The Customer represents that it has the full power and authority to carry on its business and to enter into, and to perform its obligations as set forth in this Agreement. By purchasing and using this Software, the Customer hereby expressly accepts and agrees to the terms and conditions of this Agreement.
3.0 Consultancy and Support Services.
3.1 Consultancy Services. From time to time, Customer may request Ilantus to provide Consulting Services or professional services through a “Statement of Work (SOW)” with a clear list of activities and commercial terms such as price, payment terms, term, termination etc. Ilantus shall have no obligation to perform Consulting Services until and unless it accepts to implement SOW. Customer shall be responsible for providing Ilantus’ representatives with access to qualified Customer employees and Customer-controlled software and hardware, and safe access to Customer’s premises, each as required to allow Ilantus to perform the Consulting Services. Ilantus’ representatives will comply with reasonable written rules and regulations of Customer with respect to Customer’s premises, provided that such rules and regulations are provided to Ilantus sufficiently in advance of the scheduled start date of the Consulting Services. All materials and information used or generated by Ilantus in the performance of Consulting Services (“Consulting Materials”), and all intellectual property rights therein, shall be the sole property of Ilantus. Ilantus grants to Customer a perpetual, worldwide, non-exclusive, non-transferable license, without the right to sublicense and solely for its own business operations, to use and have Users use the Consulting Materials provided to Customer under this Agreement, subject to all of the provisions of this Agreement governing Local Software Components and Documentation, as applicable. The rights to any of Customer’s preexisting proprietary business information, or results of any compilation thereof, which are used in or result from Consulting Services and Consulting Materials, shall remain the sole property of Customer.
3.2 Support Services. In the event the Customer encounters a problem with the Software, the Customer may open a service ticket by contacting the Ilantus’ help desk detailed in Annexure A: Cloud Services Support. Ilantus will categorize the problem, provided the problem is reproducible and related to a failure of the Software to perform in accordance with its specifications, and work to resolve the problem. Ilantus provides support on a 9.00 am to 6.00 pm (Local Standard Time), 5 days a week basis. Ilantus will assign applicable severity levels to issues raised by the Customers and will respond to such issues appropriately. The support for the Software purchased shall be available provided the Customer has procured the annual maintenance contract for an additional cost for 2nd year onwards or on Annual Subscription Fee.
4. Intellectual Property, Confidential Information and remedies. This Section 4 sets forth Customer’s exclusive remedy, and Ilantus’ rights and entire liability, with respect to infringement or misappropriation of intellectual property rights of any kind arising out of this Agreement.
4.1 Proprietary Rights. Ilantus retains all rights, title and interest in and to the Software and all other technology, including without limitation, all Software, Documentation and Intellectual Property Rights related thereto, and nothing in this Agreement assigns any rights, title or interest therein to the Customer. All the Customer Data remains the Customer’s property, and Ilantus shall have the right to possess and use such Customer data solely for performance of the Ilantus Software and related services. “Intellectual Property Rights” shall mean all patents, trademarks, service marks, copyrights, moral rights, trade secrets, database rights, rights in designs, know-how, confidential information and all or any other intellectual, proprietary or industrial property rights whether or not registered or pending registration or capable of registration, and whether subsisting in any part of the world including but not limiting to United States, Europe, APAC, India, Middle East, Singapore or any other part, together with all or any goodwill relating to the same. “Confidential Information” means information that is disclosed by Ilantus to the Customer or which the Customer has access to in connection with this Agreement, including, without limitation any information that should reasonably have been understood by the Customer to be proprietary and confidential to Ilantus or to its third party licensors or suppliers. Confidential Information may be disclosed in written or other tangible form or by oral, visual or other means. Information concerning the Software and related services, including the Documentation, will be considered Ilantus’ Confidential Information and shall be subject to the terms of this Clause 4. The Customer will not use any Confidential Information for any purpose not expressly permitted by the Agreement, and in case the Customer is an entity, it will disclose the Confidential Information only to its employees or contractors who have a need to know such Confidential Information in connection with the use of the Software permitted hereunder and who are under a duty of confidentiality no less restrictive than the Customer’s duty hereunder. The Customer will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. The Customer’s obligations under Clause 4 with respect to any Confidential Information will terminate if such information is, or through no fault of the Customer, has become generally available to the public. In addition, the Customer will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that the Customer notifies Ilantus of such required disclosure promptly and in writing and cooperates with Ilantus, at Ilantus’ request, in any lawful action to contest or limit the scope of such required disclosure.
4.2 Remedies in case of infringement. If the Cloud Service, Local Software Components, Third Party Software or any material portion thereof, used in Ilantus delivery of its solution is held by a court of competent jurisdiction to infringe, or if Ilantus believes that the Cloud Service may be subject to a Claim or held to infringe, Ilantus shall cure the alleged infringements through actions mentioned under clause 7. If non-infringing software or the rights to use the Cloud Service cannot be obtained upon commercially reasonable terms by Ilantus, then Ilantus may terminate the then-current subscription. Upon any such termination of the then-current subscription, Ilantus shall refund any prepaid and unused amounts paid for the then-current subscription. This Section 4.2 shall not apply to subscriptions for no fee, including trial, beta or evaluation license agreement.
5. Term and Termination.
5.1 Term and Renewal. The term of this Agreement begins on the Effective Date and unless terminated earlier as set forth in this Agreement and upon expiration of the then-current Subscription Term, Customer’s subscription will be automatically renewed for an additional year for the software version purchased, subject to payment of the Subscription Fee due for such renewed subscription. The customer shall provide notice of intent to terminate the Agreement in writing thirty (30) days prior to termination or expiration of the then-current subscription term.
5.2 Termination by Customer for Convenience. Customer may terminate any subscription, any SOW or this Agreement in its entirety, at any time upon written notice to Ilantus.
5.3 Termination by Either Party for Material Breach. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice describing the breach.
5.4 Termination by Either Party for Insolvency or Bankruptcy. Either party may terminate this Agreement by written notice to the other party if the other party becomes insolvent; applies for or consents to the appointment of a trustee, receiver or other custodian; makes a general assignment for the benefit of its creditors; initiates any bankruptcy, debt arrangements, or other case or proceeding under any bankruptcy or insolvency law; or becomes subject to any dissolution or liquidation proceedings acquiesced to by such party or not dismissed after sixty (60) days.
5.5 Effect of Termination. Upon termination or expiration of this Agreement for any reason, (a) all rights granted to the Customer in this Agreement will immediately cease to exist, (b) the Customer agrees to immediately cease and discontinue all access and use of the Software, (c) the Customer agrees to forthwith uninstall, return or destroy all copies of the Software, Documentation or other Confidential Information of Ilantus in the Customer’s possession or control, (d)the fees paid under annual maintenance contract shall be non-refundable and non-cancellable if the Agreement is terminated and (e) upon the request of Ilantus, the Customer agrees to certify in writing the Customer’s compliance with the terms and conditions of this Clause 5 of the Agreement. Clauses 4, 6, 7, 10 and 11 of this Agreement shall survive expiration or termination of this Agreement for any reason. Unless this Agreement is terminated by Customer under Section 5.3, and except as provided in Sections 4.2, 6.1 and 6.2 or in the Cloud Service – Terms, no refund shall be due from Ilantus for any unused prepaid fees.
6. Warranties and Remedies
6.1 Product functions and Cloud Service Warranty. Ilantus warrants to Customer that, during the Subscription Term, the Could Service will perform in material conformity with the functions described in the applicable Documentation. Such warranty period shall not apply to subscriptions for no fee. Ilantus will use commercially reasonable efforts to remedy any material non-conformity with respect to the Cloud Service at no additional charge to Customer. In the event Ilantus is unable to remedy the non-conformity and such non-conformity materially affects the functionality of the Cloud Service, Customer may promptly terminate the applicable subscription. In the event Customer terminates its subscription pursuant to this Section 6.1, Customer will receive a refund of any prepaid and unused portion of the Subscription Fee. The foregoing shall constitute the exclusive remedy of Customer, and Ilantus’ entire liability, with respect to any breach of this Section 6.1.
6.2 Consulting and Professional Services Warranty. Ilantus warrants to Customer that the Consulting and / or Professional Services provided by Ilantus will be performed in a professional manner and in accordance with generally prevailing industry standards. Customer must give notice of any breach of this warranty within thirty (30) days from the date that such Services are completed, as provided in the SOW applicable to the Services engagement. In such event, at Ilantus’ option, Ilantus shall (a) use commercially reasonable efforts to re-perform the Consulting / Professional Services in a manner that conforms to the warranty, or (b) refund to Customer the fees paid by Customer to Ilantus for the non-conforming Consulting / Professional Services. The foregoing shall constitute the exclusive remedy of Customer, and Ilantus’ entire liability, with respect to any breach of this Section 6.2.
6.3 Disclaimer of Warranty. Ilantus DOES NOT WARRANT THAT: (A) THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT FUNCTIONS CONTAINED IN THE SOFTWARE WILL OPERATE IN COMBINATIONS OF SOFTWARE OR HARDWARE THAT MAY BE SELECTED FOR USE BY THE CUSTOMER; (B) THE SOFTWARE WILL MEET THE CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; OR (C) ANY RESULTS, OUTPUT, OR DATA PROVIDED THROUGH OR GENERATED BY THE SOFTWARE WILL BE ACCURATE, UP-TO-DATE, COMPLETE OR RELIABLE. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 6, TO THE MAXIMUM EXTENT PERMITTED BY LAW, Ilantus SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, ARISING BY LAW OR OTHERWISE, RELATING TO THIS AGREEMENT AND THE SOFTWARE AND ANY SERVICES PROVIDED TO THE CUSTOMER, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
7. Indemnification. The Customer agrees to indemnify, defend and hold Ilantus harmless from and against any and all liability, damage, loss or expense (including reasonable attorneys’ fees) arising out of any claim, demand or proceeding based on allegations arising as a result of (i) any inaccuracies or errors within the Customer Data and other information provided by the Customer; and (ii) breach of these Software License Terms by the Customer (iii) Customer’s violation of any applicable law, including but not limited to data protection and privacy laws; or (iv) any alleged grossly negligent or willful acts or omissions of Customer which gave rise to such claim. Ilantus agrees to indemnify, defend and hold the Customer harmless from and against claims made by any third party and related losses, expenses, damages, costs and liabilities, and expenses incurred in relation to such a claim that the Software infringes, misappropriates, or otherwise violates any third party’s intellectual property rights. If Ilantus believes that the Software is, or is likely to become, the subject of an action based upon a claim that the Software, when used in accordance with the Agreement, infringes any intellectual property rights, Ilantus may, in its sole discretion, replace or modify the Software, procure for the Customer the right to continue using the Software, or terminate this Agreement and require the Customer to uninstall and stop using the Software. These obligations are conditioned on the Customer giving Ilantus prompt written notice of any such claim and providing Ilantus with reasonable assistance in addressing the claim. These obligations do not apply to the extent the claim is based on third-party code or a combination of the Software with other software or hardware or operation of the Software in a manner prohibited by the specifications. THIS CLAUSE STATES Ilantus’S ENTIRE LIABILITY AND THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS RELATED TO THE SOFTWARE.
8. Limitation of Liability. IN NO EVENT WILL Ilantus OR ITS THIRD PARTY LICENSORS BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES BY CUSTOMER. IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, DATA OR USE, INCURRED BY A PARTY OR ANY THIRD PARTY UNDER THIS AGREEMENT, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The aggregate and cumulative liability of Ilantus and its third party licensors for damages under this Agreement shall not exceed the amount of fees paid by Customer under this Agreement during the twelve (12) month period prior to the date when a claim for damages is first made, and if such damages relate to particular software or services, such liability shall be limited to fees paid for the relevant software or services giving rise to the liability during the twelve (12) month period prior to the date when a claim for damages is first made, provided, however, that the limitation of liability in this Section 8 will not apply to (a) a breach of either party’s intellectual property rights and (b) any damages awarded to a third party as a result of a claim for which either party is indemnified hereunder
9. Payment Provisions.
9.1 Invoices. Unless set forth on another Agreement or SOW, all payments of any fees under this Agreement, including Subscription Fees and Consulting / Professional Services Fees, shall be payable within thirty (30) days of the date of receipt of an invoice from Ilantus. Customer agrees and acknowledges that the terms of credit extended to Customer or Affiliates are subject to the review of Ilantus’ credit department and may be revised from time to time, effective immediately upon notice.
9.2 Subscription Fees. Customer agrees to make the Subscription Fee payments set forth in an applicable Price Schedule, which payments shall be nonrefundable, irrevocable, and not subject to offset, except as otherwise provided in this Agreement.
9.3 Consulting / Professional Services Fees. Consulting / Professional Services Fees shall be invoiced in full upon receipt of an order for Consulting Services, unless otherwise provided in an SOW payment Schedule. Consulting Fees are non-refundable. Any unused Consulting Services expire six (6) months from the date the Consulting Services were ordered, unless otherwise provided in an SOW.
9.4 Taxes. The fees specified in this Agreement do not include taxes, duties or fees. If Ilantus is required to pay or collect (i) sales, use, property, value-added, withholding or other taxes, (ii) any customs or other duties, or (iii) any import, warehouse or other fees, associated with Customer’s subscription or services provided under this Agreement or with respect to Customer’s use of software or services, then such taxes, duties or fees shall be billed to and paid by Customer unless Customer provides Ilantus with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is permitted to declare any such taxes, Customer shall declare and pay such taxes and Ilantus shall not be required to invoice Customer. This Section shall not apply to taxes based on Ilantus net income or payroll taxes.
10. Software Use Verification. During the term of this Agreement and for two years after the expiration or termination of the Agreement, the Customer must keep complete and accurate records of all Software copying and use. During this period, Ilantus will have the right, at its expense and upon no fewer than 10 working days prior written notice, to audit the Customer’s use of the Software and related records and payments. As part of such audit, Ilantus is entitled to obtain physical and electronic data concerning all Software usage at each of the Customer’s sites. The audit may be at the Customer facilities or from a remote location, at Ilantus’ option. An audit may be conducted either by Ilantus or by its authorized representative, will not interfere unreasonably with the Customer’s business activities, and will be conducted no more often than once per calendar year, unless a previous audit disclosed a material discrepancy. If such audit shows that the Customer has understated the Customer’s actual use of the Software or have otherwise underpaid amounts owing, the Customer must immediately purchase from Ilantus sufficient licenses to support the actual use and copying and pay all amounts owing. If covered under maintenance, the Customer must also purchase maintenance covering the period the Customer used the additional licenses. If such audit shows that the Customer understated its use of the Software or underpaid amounts owing by more than five percent, the Customer will also pay the reasonable expenses of the audit. Ilantus will use the information received during the audit solely for the purposes of this Clause and will honor any applicable privacy/data protection laws and otherwise maintain the confidentiality of such information.
11. Governing Law and Venue: This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by the laws of the State of Illinois, USA, excluding its conflict of law provisions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are specifically excluded from application to this Agreement. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Schaumburg County, Illinois and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement prevents either party from seeking injunctive relief in an appropriate or applicable forum.
12. General Additional Terms.
12.1 Severability. If any provision of this Agreement is found to be unenforceable, such term will be considered severable from the remaining terms, which will continue to be valid and enforceable.
12.2 Transfer or Assignment. Neither party shall sell, lease, assign or otherwise transfer this Agreement or any rights or obligations under this Agreement in whole or in part, and any such attempted assignment shall be void and of no effect without the advance written consent of the other party, such consent not to be unreasonably withheld or delayed; provided, however, that such consent shall not be required if either party assigns this Agreement to an Affiliate or in connection with and to the extent related to a merger, acquisition, any and all forms of divestment and investment, including consolidation, transfer of a line of business or corporate reorganization (whether or not assignor is the surviving entity), or sale of all or substantially all of its assets, unless the Affiliate or surviving entity (in the case of an assignment by Customer) is a competitor of Ilantus. Customer shall provide advance written notice of any permitted assignment under this Section 12.2. Subject to the foregoing consent requirement, Customer may transfer any subscription or license to any Affiliate without requirement of any relocation, transfer or assignment fee by Ilantus. Notwithstanding the foregoing, Ilantus reserves the right to impose different credit terms on any successor in interest, including but not limited to an Affiliate. Any permitted assignee will assume all obligations and rights of its assignor under this Agreement (or related to the assigned portion in case of a partial assignment). All provisions of the Agreement shall be binding upon, inure to the benefit of and be enforceable by and against the respective successors and permitted assigns of Ilantus and Customer. Except as expressly provided in this Agreement under 1.2, there are no third party beneficiaries of any of the warranties, rights or benefits of this Agreement.
12.3 Waiver. No failure or delay on the part of either of the Parties in exercising any right will operate as a waiver, nor will any single or partial exercise by either of the Parties of any right preclude any other or further exercise thereof or the exercise of any other right.
12.4 Notices. All notices, consents and approvals under this Agreement must be delivered in writing by personal delivery, electronic facsimile or certified mail, postage pre-paid, to the other Party via its registered agent or at such other address as may be later designated by such Party.
12.5 Force Majeure. Except for obligations of payment, each party shall be excused from performance for any period during which, and to the extent that, it or its subcontractor(s) is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failures and power failures.
12.6 Legal and Export Compliance. The Customer may not export, ship, transmit, or re-export the Software in violation of any applicable law or regulation. Customer shall comply fully with all international and U.S. laws and regulations that apply to the Cloud Service, Local Software Components and Documentation and to Customer’s use thereof, including but not limited to the U.S. Export Administration Regulations and other end-user, end-use and destination restrictions issued by U.S. and other governments. Without limiting the generality of the foregoing, Customer expressly agrees that it shall not, and its representatives shall not, directly or indirectly, export, re-export, divert, or transfer the Cloud Service, Local Software Components or Documentation or any direct product or portion thereof, including via remote access, (i) to any country or region so restricted by the U.S. economic sanctions or export controls, including but not limited to applicable regulations of the U.S. Commerce Department, the U.S. Treasury Department, and the U.S. Department of State, to any person or entity controlled by any such country or region, or to any national or resident of any such country or region, other than nationals who are lawfully admitted permanent residents of countries not subject to such restrictions, (ii) to any person or entity on the U.S. Treasury Department’s Specially Designated Nationals and Blocked Persons List, (iii) to any person or entity on the U.S. Commerce Department’s Denied Persons List, or (iv) to any person or entity to which sale is prohibited under the Enhanced Proliferation Control Initiative (“EPCI”). Ilantus shall be entitled to take all actions it deems necessary to ensure compliance with this Section, including but not limited to developing internal compliance practices such as performing checks and implementing use restrictions with respect to the Cloud Service, Local Software Components and Documentation. Customer agrees to the foregoing and represents that Customer is not located in, under the control of, a national or resident of any such country or region, on any such list, or subject to prohibition under EPCI.
12.7 Relationship. Nothing in this Agreement shall be construed to create a partnership, joint venture, employment or agency relationship between the parties.
12.8 Entire Agreement. This Agreement, together with the attached Cloud Services Support (Annexure-A), Cloud Services – Terms (Annexure – B), and any Schedule referring to this Agreement, each of which is incorporated by reference, constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement and such Annexures and Schedules
13. Amendments. Ilantus reserves the right to modify the terms and conditions of this Agreement at any time, effective upon posting of an updated version of this Agreement on Ilantus’ official website. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
ANNEXURE A – Ilantus Cloud Services Support
A. Cloud Service Model
|Support Hours||– 24 x 7 – Mon to Sun|
|Support Model||– Help desk|
|Mode of Support||– Service Desk
|SLA||Refer section C – Service Response SLA|
|Professional Services||– Review adoption rate
– Provide consulting on improving the adoption rate
|On-Site Support||On chargeable basis|
|Scope of Services||Standard Support Scope + Extended scope of services as mentioned below.
|Price: Payment Terms||Annually to be paid upfront|
**+1 888 260-6726
B. Priority Levels
|Priority||Description of Impact|
|Urgent||Has affected or may affect more than 50% of the user community.
|High||Has affected or may affect 10% to 50% of the user community.
Moderate impact on the day to day operations.
Work around solution available.
|Normal||Has affected or may affect less than 10% of the user community.
No impact on the day to day operations.
Work around solution available.
|Low||Has affected or may affect a single user.
No impact on the day to day operations.
Note: The above priority and impact levels are applicable only for “Premium Support”.
C. Service Response SLAs
|Priority||Initial Response||First Reply Time||Updates|
|Urgent||15 mins||Within 30 mins||Regular Updates Include
Status of the incident
Expected time for resolution
|High||15 mins||Within 1hour|
|Normal||15 mins||Within 2 hours|
|Low||15 mins||Within 4 hours|
Note: All responses will be within support window/standard business hours.
In case the support request is made during the closing hours of the support window, the same shall be taken up in the next business day.
Initial Response: It is the time taken to acknowledge a customer’s support request in an automated or non-automated way. It is measured from the time a support request is created by the customer via service desk tool (with support ticket status “Open”), until the time that the customer is advised that their support request is acknowledged.
First Reply Time: It is the time taken to initiate action on the support request from the support team. It is measured from the time the initial response (with support ticket status is “Open”) is given to the first reply given by the support team.
D. Key Dependencies
For effective support from Ilantus, timely and productive interaction with the customer personnel is required. Customer shall ensure the following:
- Customer shall submit all the support requests to email@example.com for standard support and those who are in the Premium Support using the service desk tool.
- Customer shall ensure all users/internal stakeholders are fully aware of the support type and scope of services they are entitled to.
- All the support requests will be in-line with the support type agreed upon. (In case the support requests are outside the scope of service, the same shall not be taken up and customer will be communicated)
- Customer shall provide 24/7 remote access over VPN to application servers (Development, Test, Production) for Ilantus support team
- Customer shall assign a single point of contact who will work with Ilantus support team and ensure all approvals as required shall be obtained in timely manner and any escalations raised by Ilantus are addressed within mutually agreed timelines.
- Customer shall co-ordinate with its in-house IT team and third-party application and infrastructure vendors and ensure timely feedback/support is provided to Ilantus as and when required.
- Customer shall accept or reject the resolution made by Ilantus within 4 working days. In cases where no acceptance or rejection is provided by customer within this time, the support request will be closed.
Based on the priority of the issues that are not resolved/delayed, Customer personnel can escalate the issue to Ilantus management team if the support model is not responding within the agreed timelines.
|Escalation Level||Location||Contact Information|
|Level 1||Offshore / Help desk||Technical Manager|
|Level 2||Offshore / Help desk||Delivery Manager|
|Level 3||Offshore / Help desk||Vice President – Product Services|
|Level 4||Offshore / Help desk||President – Product Services|
ANNEXURE B – Ilantus Cloud Services Terms
This Cloud Services Terms (this “Annexure”) is an annexure to the Software End User License Agreement (the “Agreement”) between Ilantus Technologies Pvt Ltd., (“Ilantus”) and the Customer as defined in the Agreement. Capitalized terms used in this Annexure and not otherwise defined below shall have the meanings given to such terms in the Agreement. In the event of a conflict between the terms of this Annexure and the Agreement, the terms of this Annexure shall control.
Customer and Ilantus hereby agree to the following:
1. Ilantus Obligations
1.1 Availability of Service. Ilantus uses industry-leading cloud service providers that provide a monthly uptime availability of at least 99.9% to host the Cloud Service. Accordingly, Ilantus will provide 99.9% availability for the Cloud Service during the cloud service provider’s service availability and the availability of the Cloud Service, shall be measured monthly. For purposes of the foregoing, “availability” means that the Cloud Service returned the correct, expected data when queried. Ilantus agrees to use its commercially reasonable efforts to make the Cloud Service generally available 99.9% of the time, 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Ilantus shall give at least two weeks online or e-mail notice to Customer and which Ilantus shall schedule to the extent reasonably practicable during the weekend hours from 11:00 p.m. PT Friday to 12:00 p.m. PT Sunday); or (b) any unavailability caused by circumstances beyond Ilantus reasonable control, including the force majeure provisions identified in Section 12.5 of the Agreement and computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Ilantus possession or control, and network intrusions or denial of service attacks. Service availability is documented monthly at www.ilantus.com.
1.2 Security. Ilantus shall maintain commercially reasonable administrative, physical and technical safeguards to maintain and protect Customer’s data that is submitted to the Cloud Service by Customer. Ilantus shall not be responsible for loss of data transmitted on networks not owned or operated by Ilantus, including the Internet. Ilantus shall produce an SSAE 18 (SOC 2) report (or similar alternative report as reasonably selected by Ilantus) on an annual basis, and Customer may request a copy of such report and agrees that such report shall be deemed Ilantus Confidential Information under the Agreement.
1.3 Ownership of Customer Data. Except for software that Ilantus licenses to Customer, as between the parties, Customer retains all right, title, and interest in and to Customer Data, as defined in Section 2.4 of this Annexure Ilantus acquires no rights in Customer Data other than the right to host Customer Data within the Cloud Service, including the right to use and reproduce Customer Data solely as necessary to provide the Cloud Service.
1.4 Use of Customer Data. Ilantus will use Customer Data (other than in aggregate and anonymized form) only to provide Customer with the Cloud Service. This use may include troubleshooting to prevent, find, and fix problems with the operation of the Cloud Service. It may also include improving features for finding and protecting against threats to Users Ilantus may share aggregated and anonymized Customer Data with business partners for use for their business purposes, but Ilantus de-identifies and aggregates such data so that the data cannot be traced to an individual, a customer, or a device. Ilantus will not use Customer Data or derive information from it for any advertising or other marketing purposes without Customer’s consent.
1.5 Third-party requests. Ilantus will not disclose Customer Data to a third party (including law enforcement, other government entity, or civil litigant, but excluding Ilantus subcontractors) except as Customer directs or unless required by law. Should a third party contact Ilantus with a demand for Customer Data, Ilantus will attempt to redirect the third party to request that data directly from Customer. As part of this effort, Ilantus may provide Customer’s basic contact information to the third party. If compelled to disclose Customer Data to a third party, Ilantus will promptly notify Customer and provide a copy of the demand, unless legally prohibited from doing so. Customer is responsible for responding to requests by third parties regarding Customer’s use of the Cloud Service, such as requests to take down content under the Digital Millennium Copyright Act.
2 Customer Obligations
2.1 Internet Access. Customer must have a high speed Internet connection in order to use the Cloud Service. Customer shall procure and maintain the hardware, software and systems that connect Customer’s network to the Cloud Service, and shall implement all reasonable communication and security protocols necessary to use the Cloud Service.
2.2 Customer Information. Customer shall provide and maintain with Ilantus accurate and complete information on Customer’s legal business name, address, phone number, email address(es) and other information reasonably requested by Ilantus. Customer agrees that Ilantus may provide any and all communications, reports, statements and notices (other than legal notices under the Agreement) to such email address(es), and may rely on any communications, directions or statements received from such email address(es).
2.3 Security. Customer shall maintain commercially reasonable administrative, physical and technical safeguards to prevent unauthorized access to or use of the Cloud Service. Customer is responsible for all activity occurring under its User Accounts, including, but not limited to those that access the Cloud Service, www.ilantus.com and related Ilantus websites and user portals, and for abiding by all applicable local, national and international laws. Customer shall promptly notify Ilantus of any unauthorized access to or use of the Cloud Service and any loss or theft of any User’s username or password of which Customer becomes aware.
2.4 Customer Data. Customer is responsible for the legality, quality, accuracy and integrity of any data and other information that Customer submits to Ilantus in the course of using the Cloud Service (“Customer Data”). Ilantus will not be responsible for any corrections, deletions or damage to Customer Data. Customer Data may include documents, images and other digital information that Customer chooses to transmit to and store in the Cloud Service. Customer is solely responsible for ensuring that Customer Data is not offensive, obscene, inappropriate or unlawful and that it does not contain any viruses or harmful content. Any Customer Data that Ilantus determines, in its sole discretion, may be offensive, obscene, inappropriate or unlawful or that may contain viruses or harmful content may be removed from the Cloud Service.
3.1 Changes to the Cloud Service. Ilantus may make changes to the functionality, user interface, usability of the Cloud Service and related Documentation from time to time. In the event of any material change to the functionality, user interface, usability of the Cloud Service, as Customer’s sole remedy in the event of such change, Customer shall have the right to terminate the Agreement and receive a pro-rata refund of fees paid by Customer for the Cloud Service for the terminated portion of the term.
3.2 Changes to this Annexure. Ilantus may make changes to this Annexure from time to time, but will not reduce the level of service for which Customer has paid. In the event of any material change to this Annexure, Ilantus will notify Customer by either sending an email to the email address(es) provided by Customer pursuant to this Annexure, or will post a notice in Customer’s administrator’s account. If Customer does not agree to such change, Customer must notify Ilantus within thirty (30) days of Customer’s receipt of such change, in which case the change will not take effect until the end of the then current Subscription Term.
4 Suspension and Termination
4.1 Suspension for Non-Payment. Ilantus reserves the right to suspend Customer’s access to or use of the Cloud Service in the event any payment of Subscription Fees is due but not paid within thirty (30) days of the date of Ilantus invoice or within an agreed period. Customer agrees that Ilantus will not be liable to Customer, any Affiliate or any third party for any suspension under this Section 4.1.
4.2 Suspension for Inappropriate Use. Ilantus reserves the right to suspend Customer’s access of the Cloud Service if Ilantus determines that Customer’s use is contrary to law or causing material harm to Ilantus or others. Ilantus will provide reasonable notice of such suspension. Customer agrees that Ilantus will not be liable to Customer, any Affiliate or any third party for any suspension under this Section
4.3 Handling of Data on Termination. In the event of any expiration or termination of Customer’s use of the Cloud Service, upon Customer’s request, Ilantus will export Customer’s data that is stored on the Cloud Service to a mobile storage medium and will return such data to Customer. Alternatively, Customer may request that Ilantus delete all such data. Ilantus may delete all of Customer’s data that is stored on the Cloud Service thirty (30) days following any expiration or termination of Customer’s use of the Cloud Service. Customer agrees that Ilantus will not be liable to Customer, any Affiliate or any third party for any data deleted under this Section 4.3.