NOTICE TO USER: PLEASE READ THIS END USER LICENSE AGREEMENT (“Agreement”) CAREFULLY. This Agreement is a legal agreement, like any written and negotiated agreement signed between you (an individual or a single entity, hereinafter referred to as the “End User” or “You”) and owned by aishwarya syndicate souharda credit co-operative limited, having its registered office at no. 21/1, 2nd floor, “manjushree”, haudin road, ulsoor, bengaluru – 560 042 (hereinafter referred as “Spark IN”) with regards to its copyrighted software, Commercial version, and/or any supplemental software code provided (if any) as part of the support services (herein referred to as “Software”) provided with this EULA.
Software for the purposes of this Agreement includes: a) the information provided with this Agreement, including but not limited to, all the software files, data and other computer information, along with sample and stock presets (settings/configurations), images, sounds, clip art, animations and other copyrighted or artistic works bundled with the Software (“Content Files”) including the associated media; b) explanatory written materials and files (“Documentation”); and, c) any modified versions and copies of, and upgrades, updates and additions to such information, provided to the End User by Spark IN at any time, to the extent not provided under separate terms.
BY DOWNLOADING OR INSTALLING, OR OTHERWISE USING ALL OR ANY PORTION OF THE SOFTWARE, THE END USER ACCEPTS ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
This agreement is enforceable against the end user and any legal entity that has obtained the license to use the software and on whose behalf it is being or will be used. If the end user does not agree to the terms of this agreement, the end user must not use the software and visit www.assccl.com for information about returning this product to Spark IN, the intellectual property right holder of this Software.
The software may include product validation and other technology designed to prevent unauthorized use and copying. This technology may cause the end user’s computer to automatically connect to the internet as described in Clause 11 of this Agreement. Additionally, once connected, the software may transmit the serial number and other information to Spark IN to prevent uses of the software that are not permitted.
This SOFTWARE is protected by the Indian copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
- 1 . Definitions and Interpretation
- 1.1 Definitions
- 1.2 Content File means and includes the information provided with this Agreement, including but not limited to, all the software files, data and other computer information, along with sample and stock presets (settings/configurations), images, sounds, clip art, animations and other copyrighted or artistic works bundled with the Software, including the associated media.
- 1.3 Documentation means and includes the explanatory written materials and files provided with the Software.
- 1.4 End User means a person who or an entity which, purchases or obtains the License to use the Software from Spark IN , or downloads or copies or installs the Software or any part of it or otherwise uses all or any portion of the Software.
- 1.5 Intellectual Property Rights includes, irrespective of whether registered or not (i) all trademarks, service marks, logos, website addresses/URLs, trade names and corporate names, together with all translations, adaptations, derivations and combinations thereof, including all goodwill associated therewith and all applications, registrations and renewals in connection therewith; (ii) all copyrightable works, all copyrights including, moral rights, and all applications, registrations and renewals in connection therewith; (iii) all computer software (including data and related documentation) code, machine code, source code, related documentation, graphics, images, designs, logos, programs, layouts and specifications; (iv) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent disclosures, together with all re-issuances, continuations, continuations-in-part, revisions, extensions and re-examinations thereof; (v) all other proprietary rights of whatsoever description whether or not protected and whether or not capable of protection; (vi) all designs, including features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, and all copies and tangible embodiments thereof regardless of form and medium.
- 1.6 License means the personal, non-transferable and non-exclusive, limited right to use the copy of the Software provided with this Agreement, granted to the End User by Spark IN , subject to the terms and conditions contained in this Agreement.
- 1.7 Product Support means and includes upgrades to or updation of the Software and bug fixes and other Software support that may be provided by Spark IN , for the prescribed subscription period under Clause 18 of this Agreement.
- 1.8 Software means the Commercial version of Spark IN copyrighted software, and/or any supplemental software code provided as part of the support services or otherwise and includes; a) the information provided with this Agreement, including but not limited to, all the software files, data and other computer information, along with sample and stock presets (settings/configurations), images, sounds, clip art, animations and other copyrighted or artistic works bundled with the Software (“Content Files”) including the associated media; b) explanatory written materials and files (“Documentation”); and c) any modified versions and copies of, and upgrades, updates and additions to such information, provided to the End User by Spark IN at any time, to the extent not provided under separate terms.
- 1.9 System means any device that is capable of processing instruction sets, including but not limited to, mobile, laptops, desktops, tablets.
- 1.10 Updates means and includes any update, update rollup, feature pack, critical update or security update that is used to improve or to fix the Software.
- 1.11 Upgrades means and includes software that replaces an installed version of the Software with a newer version of the Software.
- 2. License Grant
Subject to the terms of this Agreement, Spark IN grants to the End User, a personal, non-transferable and non-exclusive, limited right to use the copy of the Software provided with this Agreement. End User agrees that the End User shall not copy the Software. End User agrees that End User shall not copy the Content Files or Documentation provided with the Software unless permitted under this Agreement. Modifying, translating, renting, copying, transferring all or any part of the Software, or any rights granted hereunder, to any other persons and removing any proprietary notices, labels or marks from the Software is strictly prohibited. Furthermore, End User hereby agrees not to create derivative works based on the Software and not to transfer this Software. It is further understood and agreed by the End User that Spark IN retains all rights related to the Software not specifically granted to the End User in this Agreement.
- 2.1 Installation of the Software
The Software may be installed on only one System by the End User. End User further acknowledges that the End User does not have the right to allow any other third parties to access and use the End User’s copy of the Software. This license does not give the End User a right to allow anyone to access or use the Software over the Internet.
- 2.2 Term
This license shall be initially valid for a period of 2 years from the Activation Date (defined hereafter), unless terminated by Spark IN earlier.
- 2.3 Content Files
The terms and conditions related to the use, display, modification, reproduction and distribution of any of the Content Files and/or other rights and restrictions with respect to the Content Files, shall be in accordance with the “Read-Me” files or license(s) associated with those Content Files. Further, the End User cannot claim any Intellectual Property Rights in the Content Files or derivative works thereof.
- 2.4 Documentation
The End User may make copies of the Documentation for End User’s own internal/personal use only, in accordance with the terms and conditions under this Agreement, but no more than the amount reasonably necessary.
- 2.5 Use Obligations
The End User agrees that the End User shall not use the Software other than as permitted by this Agreement and that the End User shall not use the Software in a manner inconsistent with its design or the Documentation.
- 2.6 No Modifications
The End User agrees that the End User shall not modify, port, adapt, or translate the Software, unless specifically permitted under this Agreement.
- 2.7 No Reverse Engineering
End User agrees that End User will not attempt to, and if End User is a corporation, End User will use its best efforts to prevent End User’s employees and contractors from attempting to, reverse-engineer, reverse-compile, decompile, reverse-assemble, disassemble or otherwise attempt to access, reconstruct, inspect or discover the source code or underlying ideas, methods, processes or algorithms of the Software or any date or information contained in the Software, in whole or in part. Any failure to comply with the above or any other terms and conditions contained herein will result in the automatic termination of this license and the reversion of the rights granted hereunder to End User.
- 2.8 No Unbundling
The Software may include various applications, utilities and components and may support multiple platforms and languages. Nonetheless, the Software is designed and provided to the End User as a single product, to be used in accordance with the terms and conditions under this Agreement. The End User is not required to install all components of the Software, but the End User shall not unbundle the components of the Software for use on different Systems. The End User shall not unbundle or repackage the Software for distribution, transfer or resale.
- 2.9 No Transfer/No Rental
THE END USER WILL NOT LOAN, RENT, LEASE, RESELL, DISTRIBUTE, SUBLICENSE, ASSIGN OR TRANSFER THE RIGHTS IN THE SOFTWARE, GRANTED TO THE END USER UNDER THIS AGREEMENT, OR AUTHORIZE ANY PART OF THE SOFTWARE TO BE COPIED ONTO ANOTHER INDIVIDUAL’S OR LEGAL ENTITY’S SYSTEM EXCEPT IF EXPRESSLY PERMITTED HEREIN. FURTHER, THE END USER SHALL NOT LOAN, RENT, LEASE, RESELL, DISTRIBUTE, SUBLICENSE, ASSIGN OR TRANSFER THE THIRD PARTY SOFTWARE THAT MAY BE MADE AVAILABLE TO THE END USER WITH THE SOFTWARE, UNLESS THE LICENSE TERMS OF SUCH THIRD PARTY SOFTWARE PROVIDE FOR SUCH LOAN, RENT, LEASE, RESELL, DISTRIBUTE, SUBLICENSE, ASSIGNMENT OR TRANSFER.
- 3. Consideration for Grant of License
This license is granted to End User subject to the registration of the individual with ASSCCL. It is clarified that the term of license shall commence from the date on which the Software is installed or run for the first time on the System (“Activation Date”) till the expiry of the license, termination/expiry of the membership of the member, whichever comes first.
- 4. Disclaimer of Warranty
The Software is provided “AS IS” without warranty of any kind. Spark IN disclaims and makes no express or implied warranties and specifically disclaims the warranties of merchantability, fitness of the Software for a particular purpose and non-infringement of third-party rights. The entire risk as to the quality and performance of the Software is with End User. Spark IN does not warrant that the functions contained in the Software will meet End User’s requirements or that the operation of the Software will be completely uninterrupted or error-free. Spark IN is not obligated to provide any updates or upgrades to the Software. No oral or written information or advice given by Spark IN shall create a warranty.
- 5. Limited Warranty
Spark IN does not warrant that the Software will perform substantially in accordance with the Documentation Activation Date. At its own discretion, Spark IN may take reasonable efforts to correct/rectify the defects if any.
- 6. Limitation of Liability
Spark IN shall not be liable to the End User for any damages whatsoever (including, without limitation, incidental, direct, indirect special and consequential damages, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss) arising out of the use or inability to use the Software, or any claim by a third party. The exclusive remedy of the End User under this Agreement, for the Software shall be replacement of the Software by Spark IN .
7. Disclaimer of warranty
- 7.1 The Limited Warranty in Clause 5 is the only warranty offered by Spark IN . The limited warranty in Clause 5 and any statutory warranty and remedy that cannot be excluded or limited under law are the only warranties applicable to the Software. Other than those offered under this Agreement Spark IN disclaims all warranties, conditions, representations, and terms, express or implied, whether by statute, law, custom, usage, or otherwise as to any matter, including but not limited to performance and security of the Software, non-infringement of third party rights, integration, merchantability, quiet enjoyment, satisfactory quality, and fitness for any particular purpose or use. Other than such offered under this Agreement, Spark IN provides the Software and access to any web sites, Spark IN or third party online services and certificate authority services AS IS AND WITH ALL FAULTS. This disclaimer of warranty may not be valid in some jurisdictions. End User may have additional warranty rights under law which may not be waived or disclaimed.
- 7.2 EXCEPT AS SPECIFIED IN THIS CLAUSE 7, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY Spark IN, ITS SUPPLIERS AND LICENSORS. TO THE EXTENT THAT ANY OF THE SAME CANNOT BE EXCLUDED, SUCH IMPLIED CONDITION, REPRESENTATION AND/OR WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD REFERRED TO IN CLAUSE 5 ABOVE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY IN SUCH STATES. THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.
- 8. disclaimer of liabilities
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, ALL LIABILITY OF Spark IN , ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS COLLECTIVELY, TO CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO ASSCCL FOR THE SOFTWARE THAT GAVE RISE TO THE CLAIM, OR IF THE SOFTWARE IS PART OF ANOTHER PRODUCT, THE PRICE PAID FOR SUCH OTHER PRODUCT. THIS LIMITATION OF LIABILITY FOR SOFTWARE IS CUMULATIVE AND NOT PER INCIDENT (I.E. THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT).
- 9. Upgrades or Updates
Spark IN may provide Updates or Upgrades for the Software at its own discretion. After the End User installs such Update or Upgrade, the End User may continue to use any such previous version in accordance with this Agreement only if (a) the Upgrade or Update and all previous versions are installed on the same System; and (b) the End User acknowledges that any obligation Spark IN may have, to support the previous version(s) may end upon the availability of the Upgrade or Update. Further, If the Software is an Upgrade of a Software which was previously licensed to End User as a single product then, this Software which is an Upgrade may be used only as part of that single product package and may not be separated for use on more than one System. No other use of the previous version(s) is permitted after installation of an Update or Upgrade. Upgrades and Updates may be licensed to the End User by Spark IN with additional or different terms under a separate agreement. Installation of such Upgrades or Updates is at discretion and at the sole risk of the End User.
- 10. Export Rules
- 10.1 The End User agrees that the Software will not be shipped or exported into any other country, or used in any manner prohibited by the international treaties governing export of software and applicable laws including Indian export laws and regulations. End User shall be solely responsible for compliance with, and any liability arising out of shipping or exporting of the Software in violation of, the international treaties governing export of software and the applicable laws including Indian export laws and regulations. Further, such violation shall result in the automatic termination of the License granted to the End User under this Agreement.
- 10.2 The Software, Documentation and technology or direct products thereof supplied by Spark IN under the Agreement are subject to export controls under the laws and regulations of the United States of America (“US”) and any other applicable countries’ laws and regulations. Customer shall comply with such laws and regulations governing export, re-export, import, transfer and use of Software and will obtain all required U.S. and local authorizations, permits, or licenses.
- 11. Compliance with License
The End User agrees that Spark IN or its authorized representative(s) shall, upon 10 days prior notice to the End User, have the right to inspect the End User’s records, systems, and facilities to verify that the End User’s use of the Software is in conformity with this Agreement. If such inspection discloses that the End User’s use of the Software is not in conformity with this Agreement, the End User shall immediately obtain valid licenses to bring such use of Software into conformity with this Agreement.
- 12. Internet Connectivity and Privacy
- 12.1 Automatic Connections to the Internet
The Software may cause the End User’s System, without any notice, to automatically connect to the Internet and to communicate with a Spark IN web site or servers for purposes that may include, providing the End User with additional information, features and functionality in relation to the Software. The End User expressly understands, agrees and consents to the following with respect to sharing and transfer of information:
- 12.1(a) When the Software automatically connects to the Internet, an Internet protocol address (“IP Address”) (considered as personally identifiable information in some jurisdictions) associated with the End User’s Internet connection may be sent to a Spark IN ’ web site,
- 12.1(c) When the Software connects to the Internet, the Software may send data and/or information regarding the End User’s System’s power usage, power saving and any other power consumption related data to Spark IN.
- 12.2 Updating
The Software may cause the End User’s System, without additional notice, to automatically connect to the Internet (intermittently or on a regular basis) to check for Updates that are available for download to and installation on the System and to let Spark IN know the results of installation attempts. Please consult the Documentation for information about changing update settings.
- 12.3 Validation
The Software may cause End User’s System, without additional notice, to automatically connect (intermittently or on a regular basis) to the Internet in order to validate (To check if a valid license for the Software has been purchased by the End User) the Software. In cases where Software fails to be validated, the Software functionality may be reduced or the Software may not function at all.
- 12.4 Peer to Peer Communications
The Software may use the available local area network (“LAN”), without additional notice, to automatically connect to other Software and, in doing so, may indicate on the LAN that it is available for communication with other Software. These connections may transmit the IP Address of the connection to the LAN but no personally identifiable information is transmitted or received through such connections (except to the extent that IP addresses may be considered personally identifiable in some jurisdictions). Please consult the Documentation for information about changing default settings.
- 13. Termination
Spark IN may terminate this Agreement for reasons as it may deem fit, including, breach by the End User of the terms of this Agreement. The End User may terminate this Agreement by uninstalling the Software from the System. Upon termination, howsoever caused, the End User must delete and purge all Content Files, Documentation and other Software related material from the System. It is clarified that, if the End User wishes to again use the Software after the Software has been uninstalled from the System, then, the End User must again pay the License Fee and obtain the license to use the Software from Spark IN .
- 14. Third Party Rights
End User agrees that the Software may contain other software(s) that have originated from third party vendors and that the title to any third party software incorporated in the Software shall remain with such third party which supplied the same.
- 15. Intellectual Property Rights
The Software is licensed and not sold to the End User. End User acknowledges that no title to the Intellectual Property Rights in the Software is transferred to the End User. End User further acknowledges that title and full ownership rights to the Software will remain the exclusive property of Spark IN and that the End User will not acquire any rights to the Software, except as expressly set forth above. All title and Intellectual Property Rights in and arising out of the Software (including but not limited to any images, photographs, animations, video, audio, music, text and “applets,” incorporated into the Software), the accompanying printed materials, and any copies of the Software, are owned by Spark IN . The structure, organization, and source code of the Software are the valuable trade secrets and confidential information of Spark IN . The Software is protected by applicable laws, including but not limited to the copyright laws of India and other countries and by international treaty provisions. Except as expressly stated herein, this Agreement does not grant the End User any Intellectual Property Rights in the Software and all rights not expressly granted are reserved and owned by Spark IN.
- 16. Confidentiality
“Confidential Information” includes: (a) the Software; (b) any personally identifiable data or information regarding any End User; (c) any and all information disclosed by Spark IN to the End User, in whatever format, that is either identified as or would reasonably be understood to be confidential and/or proprietary. “Confidential Information” does not include information received from Spark IN , that End User can clearly establish by written evidence: (a) is or becomes known to End User from a third party who has no obligation to maintain its confidentiality; (b) is or becomes generally known to the public through no act or omission of End User; or (c) is independently developed by End User without the use of Confidential Information.
End User agrees to not make any use of Confidential Information for any purpose except as expressly provided in this Agreement, End User will not disclose Confidential Information to any third party and will protect and in no event treat all Confidential Information with less than reasonable care. Except as expressly provided in this Agreement, in the event that End User is required to disclose Confidential Information pursuant to operation of any applicable law, judicial order, or government regulations, End User will notify Spark IN of the required disclosure with sufficient time for Spark IN to seek relief, and will cooperate with Spark IN in taking appropriate protective measures, and will make such disclosure in a fashion that maximizes protection of the Confidential Information from further disclosure.
- 17. Indemnification by End User
End User agrees to indemnify, hold harmless and defend Spark IN to the fullest extent against all liabilities, losses, damages, claims (including third party claims), fines, fees, penalties, interest, costs and expenses (including attorney fees and court costs) that arise or result from the breach by the End User of this Agreement.
- 18. Damages
The End User acknowledges that the breach of this Agreement would result in irreparable damage(s) to Spark IN . If the End User breaches the provisions of this Agreement, the End User shall be liable to pay damages to Spark IN , including but not limited to, adequate indirect or consequential, exemplary, special, punitive, incidental damages which may be ascertained to have caused by a direct or indirect action of the End User.
- 19. Amendment by Spark IN
The End User unconditionally agrees, confirms and consents that the right to amend the terms and conditions of this Agreement from time to time remains with Spark IN (“Right to Amend”). The End User further agrees and confirms that while exercising this Right to Amend, Spark IN is under no obligation to seek prior permission from the End User or delivering a prior notice to the End User, for such amendment(s). Such amendment(s) shall become part of this Agreement and shall bind anyone who has consented to the Agreement even prior to such amendment as long as the Licence subsists. Spark IN at its discretion may notify the End User through Spark IN website about such amendment within 72 (Seventy Two) hours of bringing such amendment to effect.
- 20. Severability
If any provision of this Agreement is held or found to be unenforceable, illegal or void, all other provisions will nevertheless continue to remain in full force and effect.
- 21. Entire Agreement
This Agreement constitutes and represents the entire agreement between Spark IN and the End User with regard to the rights and obligations of Spark IN and the End User and supersedes all prior arrangements, agreements or understandings, if any, whether oral or in writing, between Spark IN and the End User on the subject matter hereof or in respect of matters dealt with herein.
- 22. Governing Law
This Agreement shall be governed and construed in accordance with the laws of the Republic of India, and other international treaties governing the licensing and export of software. Subject to Clause 22, the courts in Bengaluru shall have exclusive jurisdiction over any dispute that may arise out of or in relation to this Agreement.
- 23. Dispute Resolution
Subject to applicable laws, Spark IN and the End User (“Parties to the Dispute”) shall negotiate in good faith and use reasonable efforts to settle any dispute, controversy or claim arising from or related to this Agreement (each, a “Dispute”). In the event that Spark IN and the End User are unable to reach a resolution within 10 (Ten) days from the date of such Dispute, then either Spark IN or the End User may, by written notice to the other, elect to have the matter settled by binding arbitration as provided below.
In a situation where in the above mentioned step fails, such Dispute shall be referred to binding arbitration under the Arbitration & Conciliation Act, 1996, as amended and in force, from time to time.
In the event of a Dispute, the same shall be resolved by a sole arbitrator chosen by Spark IN
It is expressly agreed between the Parties to the Dispute that:
- (a)The Seat of such arbitration shall be at Bangalore;
- (b)The arbitration proceedings shall be conducted in the English language.
- (c)The arbitration award shall be final and binding.
Nothing will preclude a party to this Agreement from seeking injunctive relief from any court having jurisdiction to grant such interim relief. The pursuit of injunctive relief will not be a waiver of the duty of the parties to pursue any remedy for damages through the arbitration described in this Clause 23.
- 24. Survival
All provisions relating to confidentiality, proprietary rights, limitation of liability, dispute resolution, severability, indemnity and damages, and governing law shall survive the termination of this Agreement.