End User License Agreement (EULA)

Owned by Aniket Banerjee (Deactivated)
Last updated: Aug 17, 2020
25 min read

This EULA applies to all of our apps sold via the Atlassian marketplace. For our other products and services, a different EULA may be applicable.

This End-User License Agreement (“EULA”) is a binding legal agreement between you, either as an individual or, an entity and its Affiliates (“Licensee”) and Trundl Labs Private Limited (“Licensor”) concerning its Software (as defined below).

An amendment or addendum to this EULA may accompany the Software (in the form of Terms & Conditions, Privacy policy, or any other agreement), and any such amendment or addendum shall be considered part of the EULA.

List of links to various legal documents pertaining to this application or specific to each software can be found at the links below:

Privacy Policy

Service Level Agreement

By installing, copying, downloading, or otherwise using the Software, or by clicking a box indicating your acceptance, Licensee agrees to be bound by the terms of this EULA. If you are entering into this agreement on behalf of an entity, you represent that you have the authority to bind such entity to the EULA and are agreeing to the EULA for that entity.

Caution: If the licensee does not agree to the terms of this EULA, the licensee must not install, copy, download, or otherwise use our software.

1.       DEFINITIONS

Unless otherwise expressly defined in the Agreement, each of the following capitalized terms shall have the meaning given to it as set forth in this Section 1.

1.1.        “Accessible Code” means a source code that is unprotected and accessible.

1.2.        “Affiliate” means, with respect to a Party, a Person that Controls or is Controlled by, or is under common control with, such Party.

1.3.        “Application” means the Atlassian application within which the Software runs. Depending on the software you are using, this could be Jira, Confluence, Jira service desk, Bitbucket, Stride etc.

1.4.        “Applicable Law” means all applicable laws, statutes and regulations, and all applicable orders, judgments, decisions, recommendations, rules, policies or guidelines passed or issued by any regulatory authority or any competent court, to the extent applicable to either of the Parties, as the same may be amended and in effect from time to time during the Term.

1.5.        "Authorized Users" means a person who accesses and uses the Software under a User License.

1.6.        "Confidential Information" has the meaning set forth in Section 14.

1.7.        “Content” means any and all content, data and other information prepared and provided by Licensor or Licensee under this Agreement for access by Users, including without limitations, WAP sites, websites, RSS feeds, texts, metadata, images, photos, videos, audios, audiovisuals, ratings and comments.

1.8.        “Control” means the possession, direct or indirect, of the power to vote more than fifty percent (50%) of the securities that have ordinary voting power for the election of directors of any entity, or to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities or by contract or otherwise.

1.9.        “Cloud Products” means Trundl Labs Private Limited’s Software hosted in the cloud.

1.10.     “Embedded Software” means any third-party software licensed by Licensor from a third party and embedded in the Software.

1.11.     “Fees” mean all fees and expenses payable by the Licensee to Licensor in acquiring the Software and as may be applicable to any Maintenance or User Licenses.

1.12.     “Free License” or ‘Evaluation/Trial License’ means a license for which the Fees are waived by Licensor.

1.13.     “Data Compromise” means any compromise in the security, confidentiality, or integrity of any Personal Information, including unlawful or unauthorized access, use acquisition, transmission, alteration, disclosure, deletion, or destruction thereof.

1.14.     “Documentation” means any technical specifications, guidelines, hardware schematics, hardware diagrams, layout, and other specification or documentation that Licensor may make available or provide to Licensee for use in connection with the Licensor Service.

1.15.     “Eligible Device” means any consumer product in which the software service is implemented downloaded and enabled by Licensor at its sole discretion.

1.16.     “Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (i) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents and industrial property rights; (v) other proprietary rights of every kind and nature; and (vi) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and Licensee Services for, any of the rights referred to in clauses “(i)” through “(v)” above.

1.17.     “Marks” means trade names, trademarks, service marks, designs, logos, domain names and other distinctive brand features.

1.18.     “Maintenance” means the provision by Licensor to Licensee, of Software updates and/or enhancements made generally available to customers from time to time, and online technical support for the sole purpose of addressing technical issues relating to the use of the Software.

1.19.     “Media” means all images, icons, text files, pdfs or other static non-code assets contained within the Software.

1.20.     “Paid License” means a license for which Fees have not been waived by Licensor.

1.21.     “Parties” means either Licensor or the Licensee or both.

1.22.     “Protected Code” means any source code that is protected against access by the Licensee and any third party without Licensor’s prior written permission and is otherwise not accessible under this EULA.

1.23.     “Purchase” means acquisition of the Software from a Reseller or Licensor.

1.24.      “Person” means a natural person, partnership, limited liability partnership, corporation, limited liability company, trust, unincorporated association, joint venture, or other entity or any federal, state or local government, agency, commission, department, or instrumentality.

1.25.     “Personal Information” is information in any media that alone identifies or when used in combination with identifying information could reasonably be used to identify a natural person, including without limitation a person’s first and last name, home or other physical address, telephone number, fax number, email address or other online identifiers, social security number or other third-party issued identifier (including state identification number, driver’s license number, or passport number), biometric data, health information, credit card or other financial information (including bank account information), IP address and cookie information, or any other device-specific number or identifier.

1.26.     “Software” means the Licensor’s software that accompanies this EULA, which may include computer software, Accessible Code and Protected Code, associated media, printed materials, electronic documentation, Internet-based services and Embedded Software.

1.27.     “Technology” means any inventions (whether or not patentable), ideas, concepts, processes, methods, know-how, designs, information, data, software programs (including source and object codes), application programming interfaces (“APIs”), documentations, specifications, techniques, software development toolkits, products, devices, apparatuses, works of authorship, and other forms of technology.

1.28.     “Term” has the meaning set forth in Section 8.1.

1.29.     “Territory” means any territory where Licensor makes the Software Service publicly available.

1.30.     “Third Party Software” shall mean any software, computer programming code or accompanying documentation owned by any third party including, but not limited to, any of following: (a) any software licensed from a third party; (b) any software placed in the public domain and accessible to anyone without any specific license terms attached thereto; (d) any software disclosed or distributed under a license that permits users to use, modify, improve or distribute such software and/or documentation and requires any or all of the following: (i) the making available of source code, object code and/or accompanying documentation of the software or any modifications to, or derivatives of, such software and/or documentation; or (ii) the granting of the right to distribute, use, create modifications to, or create derivative works from, such software and/or documentation at no charge or on a royalty-fee basis; or (e) any software licensed under the Apache License, Artistic License, Berkeley Software Distribution License, GNU General Public License, GNU Library or Lesser General Public License, Mozilla Public License, Netscape Public License, Sun Community Source License or Sun Industry Standards License.

1.31.     “Updates” means, with regard to a Technology, as applicable, any bug fixes, enhancements, modifications, new releases, new versions, supplements, updates or upgrades.

1.32.     “User” means any user of an Eligible Device who accesses the Licensed Software by means of the web interface or downloaded to, such Eligible Device

1.33.     “User License” means a license granted under this EULA to the Licensee to permit an Authorized User to use the Software. The number of User Licenses granted to the Licensee is dependent on the Fees paid by the Licensee.

 

2.       GRANT OF LICENSE

The Software is licensed, not sold.

Upon Licensee’s acceptance of this EULA, Licensor grants the Licensee the right to use the Software subject to the following:

2.1.    Paid License

 

2.1.1.  Authorized Users

The licenses granted are subject to the condition that the Licensee must ensure the maximum number of authorized users accessing and using the Software concurrently is equal to the number of User Licenses for which the necessary Fees have been paid to the Licensor. The Licensee may purchase additional User Licenses at any time on payment of the appropriate Fees to the Licensor.

2.1.2.   Backup

The Licensee is permitted to copy the Software for data protection, archiving and backup purposes only and for no other purpose. Only the minimum number of backup copies may be made.

2.2.    Evaluation/Trial License

Licensor may in its sole discretion provide evaluation copies of the Software, which may have limited functionality, to a Licensee to assess the Software. Any such evaluation copies will be provided under an Evaluation/Trial License that limits the period during which the Licensee may download, install, use and operate the Software (“Evaluation Period”) and limits the number of temporary users. On the expiry of the Evaluation Period, the Software will cease to function and the Licensee must remove and delete all copies of the Software in its possession.

2.3.    General License Terms

 

2.3.1.   Scope

Each license granted by Licensor under this EULA is worldwide, non-exclusive and non-transferable, unless otherwise specified in writing.

Licensee agrees not to :

(a) decompile, reverse engineer, disassemble, modify, adapt, create derivative works from, or otherwise attempt to derive, any part of or the whole of the Software;

(b) sell, sublicense, distribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine-readable form any part of or the whole of the Software or any data/information not owned by the Licensee;

(c) make the Software available by rental, timesharing, a subscription service, hosting or outsourcing; and

(d) directly or indirectly access or use any Embedded Software independently of the rest of the Software.

2.3.2.   Duration

Subject to the terms of this EULA and unless terminated earlier as per this EULA, the term granted hereunder shall be:

(a)    for a Cloud Product, the period of the License subscription or renewal;

(b)    for a Paid License of the downloaded Software, perpetual; or

(c)    for an Evaluation License, the Evaluation Period.

2.3.3.   Protection Mechanisms

The Software includes license protection mechanisms that are designed to manage and protect the intellectual property rights of Licensor and its third-party suppliers. Licensee must not modify, alter, attempt to defeat or defeat such protection mechanisms or the use rules that the protection mechanisms are designed to enforce. Any such violation by the Licensee will result in the immediate termination of this license.

2.3.4.   Eligible Device

Except as otherwise agreed in writing by Licensor, the Licensee must only install the Software and make the Software available for use on eligible devices which may be hardware systems owned, leased or controlled by the Licensee.

2.3.5.   Responsibility for Non-controlled systems

If Licensor permits the Licensee to install the Software or make the Software available for use on hardware systems not owned, leased or controlled by the Licensee (“Non-controlled Systems”), the Licensee will ensure the terms of this EULA are complied with by users of such Non-controlled Systems and the Licensee will indemnify Licensor for all costs, damages and loss Licensor suffers arising from such installation or use of the Software on Non-controlled Systems.

3.       FEES

The Licensee must pay all applicable fees by the due date and in the manner directed at the time of purchase of the Software. Failure to pay Fees by the due date will result in the immediate termination of the licenses granted under this EULA.

Fees may be waived off by the Licensor for a software application under a Free License or a Trial License.

 

4.       MAINTENANCE

4.1.    Supplemental Software and Services

This EULA applies to updates, supplements, add-on components, or Internet-based services components, of the Software that Licensor may provide to the Licensee or make available to the Licensee after the date the Licensee obtains its initial copy of the Software (“Supplemental Software”), unless Licensor provides additional terms with any Supplementary Software.

4.2.    Support Services

Licensor may offer support services, and such services may be subject to the payment of additional fees. Any such support services will be the subject of a separate agreement.

 

5.       INTELLECTUAL PROPERTY

5.1.    Ownership; Intellectual Property Rights

Licensee acknowledges and agrees that Licensor or its Affiliates own their Technology and retain all Intellectual Property Rights thereto, including the Licensor Software, or any other software, Service, Documentation, Marks, and digital assets (if any) provided by Licensor. Except as expressly set forth in this EULA, no licenses granted by Licensor to the Licensee with respect to this software are expressly reserved. Nothing in this EULA restricts, or should be deemed to restrict, either Licensee’s right to exercise any rights or licenses received from any third parties. Licensee acknowledges that its use of the other Licensors Technology will not create any right, title, or interest in or to such Technology. In the event that a Licensee is determined to have acquired any right, title or interest in or to the Licensor’s Technology, Licensee hereby agrees to assign, and hereby assigns, to the Licensor all such acquired right, title and interest in or to the Licensors Technology and all Intellectual Property Rights thereto.

5.2.    Restrictions on Use; Compliance with Applicable Laws;

5.2.1. Licensee recognizes that the name, logo, and trademarks of the Licensor represent valuable assets of such entity and that substantial recognition and goodwill are associated with such assets.

5.2.2. Licensee agrees that each use of the Licensor marks including name, logo trademarks will at all times be in compliance with applicable law and any trademark or other usage guidelines provided by Licensor, including appropriate written consent of the Licensor and trademark notices as may be required by law or reasonably specified in writing.

5.2.3. Licensee will not (i) take any action inconsistent with the Licensor ownership of the Marks; (ii) use the Licensor Marks in a manner that would tarnish, blur, or dilute the quality associated with the Marks or the associated goodwill as determined by the owner of the Marks in its sole discretion; and (iii) use the Licensee Marks except as permitted under this Section.

5.2.4. Licensee will acquire any right, interest or license in any trademark or service mark of the other party by virtue of this EULA

5.2.5. Where possible, Licensor will approve the use of its name in documents for broad dissemination, approval should be secured for use in a brochure or other document, for each use.

5.3.    Embedded Software

The Licensor’s Software contains Embedded Software that is licensed from its respective third party owner. Additional obligations may apply to the use of Embedded Software by the Licensee that is not in accordance with the use of the Software under this EULA. In such circumstances, the Licensee must acquire any licenses and consents from the relevant third parties for the use of any Embedded Software by the Licensee.

Any such necessity to acquire a third-party license in addition to our software, will be expressly available along with the relevant software privacy policy.

5.4.    Licensee shall not remove markings

Licensee may not remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings on or in the Software. Licensee is not granted any rights to any trademarks or service marks of Licensor.

 

6.       WARRANTIES AND DISCLAIMERS

6.1.    Representations

Each party represents that it has validly entered into this Agreement and has the legal power to do so.

 

6.2.    Licensor Warranties

Licensor warrants that during an applicable subscription term

6.2.1.   this EULA and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Licensee Data,

6.2.2.   Licensor will not materially decrease the overall security of the software,

6.2.3.   the Software will perform materially in accordance with the applicable Documentation, and

6.2.4.   the Software is free from viruses, worms, time bombs, Trojan horses and other harmful code

6.3.    Disclaimer

EXCEPT AS EXPRESSLY PROVIDED HEREIN, LICENSOR DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THIS SOFTWARE/SDK IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.

 

7.       BREACH BY LICENSEE

7.1.    General

If the Licensee materially breaches any of its obligations or causes a breach of its obligations which cannot be cured, then the Licensee must immediately report such breach to Licensor, in writing as required in Clause 15.7 (Notices).

7.2.    Breach of Additional Licenses

Where a breach involves the distribution or use of Software outside of the terms of the User License or any Additional User License (including but not limited to the use and distribution of Embedded Software), Licensor, any third party owner of Embedded Software, or both are entitled (without prejudice to any other right or claim that Licensor or any third party owner of Embedded Software may have against Licensee) to charge Licensee, in addition to any other Fees payable by Licensee under this EULA, a fee calculated based on the number of prohibited distributions or uses multiplied by the respective list prices that Licensor and/or any third party owner of Embedded Software charges for the Software or Embedded Software respectively.

 

8.       TERM AND TERMINATION

8.1.    Term of Agreement

This Agreement commences on the date Licensee first accepts it and continues until all subscriptions hereunder have expired or have been terminated.

8.2.    Termination with Notice

Upon at least 30 days’ notice. Licensor reserves the right to terminate any Internet-based services provided to the Licensee or made available to the Licensee through the use of the Software.

8.3.    Termination with immediate effect

Without prejudice to any other rights and in addition to any other termination rights in this EULA, Licensor may terminate with immediate effect, this EULA if:

8.3.1.      Licensee fails to comply with the terms and conditions of this EULA;

8.3.2.      a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of Licensee (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of Licensee with one or more other companies or the solvent reconstruction of Licensee;

8.3.3.      an application is made to a tribunal or court, or an order is made, for the appointment of a liquidator/administrator, or if a notice of intention to appoint a Liquidator/ administrator is given or if a liquidator/administrator is appointed, over Licensee (being a company);

8.3.4.      a person becomes entitled to appoint a receiver over the assets of Licensee or a receiver is appointed over the assets of Licensee;

 

8.4.    Refund or Payment upon Termination.

If this EULA is terminated by Licensor in accordance with the section 8.2 above, Licensor will refund Licensee any prepaid fees covering the remainder of the subscription term of all Order Forms after the effective date of termination. In no event will termination relieve Licensee of its obligation to pay any fees payable to Licensor for the period prior to the effective date of termination.

8.5.    Effect of Termination

Upon termination of a license granted under this EULA, the Licensee must at its own cost as soon as is reasonably practicable:

8.5.1.      cease access to and cease use of the Software; and

8.5.2.      remove all copies of the Software from its computer systems or any Un-controlled Systems, including archival or backup systems; and

8.5.3.      provide Licensor with written certification that it has destroyed all copies of the Software including but not limited to all Accessible Code in its possession, custody or control.

 

9.       MUTUAL INDEMNIFICATION

9.1.    Indemnification by Licensor

9.1.1.      Licensor will indemnify and hold harmless Licensee against any claim, demand, suit or proceeding made or brought against Licensee by a third party alleging that the software provided by Licensor misappropriates such third party’s intellectual property rights (a “Claim Against Licensee”), and will indemnify Licensee from any damages, attorney fees and costs finally awarded against Licensee as a result of, or for amounts paid by Licensee under a settlement approved by Licensor in writing of, a claim against Licensee, provided Licensee (a) promptly gives Licensor written notice of the Claim Against Licensee, (b) gives Licensor sole control of the defense and settlement of the Claim Against Licensee (except that Licensor may not settle any claim against Licensee unless it unconditionally releases Licensor of all liability), and (c) gives Licensor all reasonable assistance but no cost or expense shall be incurred for the account of Licensor without its prior written consent.

9.1.2.      If Licensor receives information about an infringement or misappropriation claim related to a Software, Licensor may in its discretion and at no additional cost to Licensee (a) modify the Software so that they are no longer claimed to infringe or misappropriate, (b) obtain a license for Licensee’s continued use of that Service in accordance with this EULA, or (c) terminate Licensee’s subscriptions for that Service upon 30 days’ written notice and refund Licensee any prepaid fees covering the remainder of the term of the terminated subscriptions. Licensor’s obligations under this section do not apply to Licensee’s use of the Platform under a free trial.

9.1.3.      The above defense and indemnification obligations do not apply if (a) the allegation does not state with specificity that the Software is the basis of the Claim Against Licensee as specified under clause 9.1.1; (b) a Claim Against Licensee arises from the use or combination of the Sofware or services or any part thereof with software, hardware, data, or processes not provided by Licensor, if the Software or use thereof would not infringe without such combination; (c) a Claim Against Licensee arises from Services under an Order Form for which there is no charge (including free trials or free version); (d) a Claim against Licensee arises from a Non-Licensor Application or Licensee’s breach of this Agreement, the Documentation or applicable Order Forms, (e) a Claim against Licensee results in whole or in part from Licensee specifications or modifications, (f) Licensee continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement.

 

9.2.    Indemnification by Licensee

Licensee will indemnify and hold harmless Licensor and its Affiliates against any claim, demand, suit or proceeding made or brought against Licensor by a third party alleging (a) that any Licensee’s Data or Licensee’s use of Licensee Data with the Services, (b) a Non- Licensor Application used by Licensee, (c) the combination of a Non- Licensor Application used by Licensee used with other software or services, or (d) any Licensee’s work infringes or misappropriates such third party’s intellectual property rights, or arising from Licensee’s use of the Services in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form, and will indemnify Licensor from any damages, attorney fees and costs finally awarded against Licensor as a result of, or for any amounts paid by Licensor under a settlement approved by Licensee in writing of, a Claim Against Licensor provided Licensor (i) promptly gives written notice of the Claim Against Licensor, (ii) gives Licensee sole control of the defense and settlement of the Claim Against Licensor (except that Licensee may not settle any Claim Against Licensor unless it unconditionally releases Licensor of all liability), and (iii) gives Licensee all reasonable assistance, at Licensee’s expense but no cost or expense shall be incurred for the account of Licensee without its prior written consent.

 

9.3.    Exclusive Remedy

This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.

 

10.   LIMITED WARRANTY

10.1.     Disclaimer of Warranties

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR AND ITS THIRD-PARTY SUPPLIERS PROVIDE THE SOFTWARE AND ANY MAINTENANCE (CLAUSE 4) AS IS AND WITH ALL FAULTS, AND EXCEPT OTHERWISE EXPRESSLY CONTAINED IN THE EULA HEREBY DISCLAIM ALL OTHER WARRANTIES OR REMEDIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE PERFORMANCE, CONDITION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, AVAILABILITY, OR RELIABILITY. ADDITIONALLY, LICENSEE ACKNOWLEDGES THAT LICENSOR’S CLOUD PRODUCTS ARE HOSTED BY THIRD-PARTIES, AND THAT THE AVAILABILITY OF THOSE CLOUD PRODUCTS IS SUBJECT TO A THIRD PARTY’S SERVICE LEVEL AGREEMENT.

10.2.     Non-Excludable Remedies

The Licensee may have remedies against Licensor imposed by law or statute that cannot be excluded by Licensor and its third-party suppliers. To the extent the Licensee has such legal remedies against Licensor or its third party suppliers then to the fullest extent permitted by law Licensor and its third party suppliers’ liability are limited (a) at Licensor’s option, to: (i) in the case of the Software: 1) repairing or replacing the Software; or 2) the cost of such repair or replacement; and (ii) in the case of Maintenance; 1) resupply of the Maintenance; or 2) the cost of having the Maintenance supplied again;

Provided further that in any situation the Licensor’s maximum liability shall not exceed the amount actually paid by the Licensee for the Software.

 

11.    LIMITATION OF LIABILITY

11.1.     Licensor shall not be liable to the Licensee where faults arise from:

11.1.1.  the possession, use, development, modification or maintenance of the Software (or any part thereof) by the Licensee other than in accordance with this EULA, if the infringement would have been otherwise avoided;

11.1.2.  misuse, incorrect use of or damage to the Software from whatever cause (other than any act or omission)

11.1.3.  any breach of the Licensee’s obligations under this EULA;

11.1.4.  any modification not authorized by Licensor resulting in a departure from this EULA; or

11.1.5.  any operator error on the part of the Licensee.

11.2.     Limitation of Liability

IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY LICENSEE AND ITS AFFILIATES HEREUNDER FOR THE SOFTWARE LICENSE GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT LICENSEE'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.

11.3.     Exclusion of Consequential and Related Damages

IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

12.     LICENSEE PUBLICITY RIGHTS

During the term of this EULA, Licensee grants Licensor the right to include Licensee as a customer in Software promotional material, including Licensee’s logo. Licensee can deny Licensor this right at any time by submitting a written request via email to legal@trundl.com and requesting to be excluded from Software promotional material. Requests generally are acted upon within thirty (30) calendar days.

13.    IMPROVING LICENSOR’S PRODUCTS

Licensor is always striving to improve its products. In order to do so, Licensor needs to collect information about its users and to measure, analyze, and aggregate how its users interact with its products, such as usage patterns and characteristics of our user base. Licensor collects such information and uses the information as per the privacy policies outlined specifically for each software. Licensee has reviewed and agrees to Licensor’s privacy policies for relevant software.

Licensor shall own all rights, title, and interest in any Intellectual property related to, within the scope of or that enhances the Licensed Technology made during the Term by Licensor including without limitation, adaptations, modifications, enhancements or changes to the Licensed Technology ("IMPROVEMENTS"). The Improvements shall be considered included in the definition of Licensed Technology for purposes of this EULA.

14.     CONFIDENTIALITY

14.1.     Definition of Confidential Information.

“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.

Confidential Information of Licensee includes Licensee Data; Confidential Information of each party includes business and marketing plans, technology and technical information, Software plans, designs, updates and processes.

However, Confidential Information does not include any information that;

i.   is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,

ii.  was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party,

iii.  is received from a third party without breach of any obligation owed to the Disclosing Party, or

iv.  was independently developed by the Receiving Party.

For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section also applies to Confidential Information exchanged between the parties in connection with the evaluation of the services.

 

14.2.     Protection of Confidential Information.

As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this EULA and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this EULA and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Licensor may disclose the terms of this Agreement and any applicable Order Form to a subcontractor to the extent necessary to perform Licensor’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.

14.3.     Compelled Disclosure.

The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

14.4.     Remedies.

If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the section “Confidentiality” (including subsections), the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

 

15.    GENERAL PROVISIONS

15.1.     GOVERNING LAWS AND FORUM SELECTION

This EULA and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of India, and the Indian Courts shall be the competent courts of jurisdiction.

15.2.     ARBITRATION

All disputes arising between the parties as to the interpretation, operation, or effect of any clause in this agreement or any other difference arising between the parties, which cannot be mutually resolved, shall be referred to the arbitration of an arbitrator chosen by both the parties in writing. The decision of such an arbitrator shall be binding on both the Parties.

15.3.     EXCLUSION OF UN CONVENTION

For the sake of clarity, it is stated that the terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this EULA.

15.4.     ENTIRE AGREEMENT

15.4.1.    This EULA (and any addendum or amendment to this EULA and any other rules and policies as may be applicable and which is included with the Software) is the entire agreement between the Licensee and Licensor relating to the Software and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA.

15.4.2.    Each party acknowledges that, in entering into this EULA (and the documents referred to in it), neither relies on any statement, representation, assurance or warranty (“Representation”) of any person (whether a party to this EULA or not) other than as expressly set out in this EULA or those documents. Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as provided in this EULA.

 

15.5.     EXPORT RESTRICTIONS

The export of the Software from the country of original Purchase may be subject to control or restriction by applicable local law. Licensee is solely responsible for determining the existence and application of any such law to any proposed export and for obtaining any needed authorisation. Licensee agrees not to export the Software from any country in violation of applicable legal restrictions on such export.

15.6.     NOTICES

All notices or consents required or permitted to be given pursuant to this EULA shall be in writing and signed on behalf of the notifying or consenting party by an officer or other representative authorized to do so and shall be deemed given

  • in five (5) business days following the date of their mailing, by registered or certified mail, return receipt requested, or by hand delivery by an established international courier service to the following addresses or to such other addresses which the party shall designate in writing to the other party.

  • in 24 hours after an electronic communication (including email) to registered email id is sent.

All notices to Licensor will be sent to:

  • Trundl Labs Private Limited : Module No: 303C, NSIC Campus, Business Park, Kamala Nagar, ECIL, Hyderabad, Telangana 500062,

All notices to Licensee will be sent to:

  • the physical address or the email address provided by Licensee upon Purchase of the Software.

15.7.     WAIVER

15.7.1.       Waiver of a breach of any provision of this Agreement by Licensor shall be effective unless made expressly in writing and no such waiver shall constitute or be construed as a waiver by Licensor of any future breach of the same or any other provisions of this Agreement.

15.7.2.       If Licensor fails, at any time during the term of this EULA, to insist upon strict performance of any of the Licensee’s obligations under this EULA, or if Licensor fails to exercise any of the rights or remedies to which it is entitled under this EULA, this shall not constitute a waiver of such rights or remedies and shall not relieve the Licensee from compliance with such obligations. A waiver by Licensor of any default shall not constitute a waiver of any subsequent default.

15.8.     SEVERABILITY

In the event that any provision of this EULA or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this EULA will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.

15.9.     INDEPENDENT PARTY

Licensee shall be and act as an independent party, and under no circumstances shall this EULA be construed as one of partnership, joint venture or employment between the parties.  Each party agrees and acknowledges that it neither has nor will give the appearance or impression of having any legal authority to bind or commit the other party in anyway.  This Agreement shall not confer any benefit to any unidentified third party.

15.10. ASSIGNMENT

Licensee may assign this EULA to: (i) succeeding parties in the case of a merger, acquisition or change of control; or (ii) if Licensee is a supplier to a government agency; provided, however, that in each case, (a) Licensor is notified in writing within ninety (90) days of such assignment, (b) the assignee agrees to be bound by the terms and conditions contained in this EULA and (c) upon such assignment the assignor makes no further use of the Software licensed under this EULA.

Licensor may assign its rights and obligation under this EULA without consent of Licensee. Any permitted assignee shall be bound by the terms and conditions of this Agreement

15.11. FORCE MAJEURE

If the Licensor is unable to perform any of its obligations under this EULA because of circumstances beyond its control, such as an act of God, epidemics/pandemics, complete destruction of its facilities, strike, revolution, riots, act of public enemy, acts of terrorism, national emergency, fire, connectivity failure,  failure of systems used for delivery or by any other cause, whether similar or dissimilar, not within the control of the party (a “Force Majeure Event”), the Licensor shall intimate through public notice by such means as may be practically possible to the licensor as soon as possible and shall do everything reasonably practicable to resume performance.  Upon issuance of such notice, all obligations under this EULA shall be immediately suspended to the extent specified in the notice and for the period of the Force Majeure Event.

15.12. ANTI-CORRUPTION

Licensor or any of its employees or affiliates have not offered, received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this EULA.

15.13. INTERPRETATION

In this EULA, the following rules apply:

15.13.1.   a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

15.13.2.   a reference to a party includes its personal representatives, successors or permitted assignee;

15.13.3.   the headings in this EULA are inserted for convenience only and shall not affect its construction;

15.13.4.   a reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it;

15.13.5.   a reference to one gender includes a reference to the other gender;

15.13.6.   any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

15.13.7.   a reference to writing or written includes faxes, e-mails, communications via websites and comparable means of communication.

15.13.8.   The headings and captions of the various sections of this EULA are included for convenience of reference only and do not in any way affect the meaning or interpretation of the substantive provisions of this EULA.

15.14. SURVIVAL

Clauses 1, 5-10, 11,12, and 15 shall survive termination of this EULA.