redSling – End User License Agreement
This agreement is by and between WEMAPAC, a company registered under the laws of Australia and having its registered office 882/585 Little Collins Melbourne, State of Victoria, Australia (“Wemapac”) and (“Customer”).
The Customer’s use of the Products is subject to all terms and conditions in this agreement, including all documents referenced herein (collectively, “Agreement”).
“Affiliate” means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common Control with such party.
“Confidential Information” has the meaning set forth in Section 10.
“Control” means ownership or control, directly or indirectly, of more than 50% of the voting interests of the subject entity.
“Customer Data” means all data that is submitted to the Products by Customer and all data, text, and files that Customer generates (including report content) through the Products.
“Customer Equipment” means the Customer’s computer hardware, software, and network infrastructure used to access the Products.
“Documentation” means the description of the Products and Professional Services purchased by the Customer contained in Exhibit A.
“Extension Term” means each additional period that is mutually agreed in writing by the parties for which the term for the applicable Products is extended.
“Initial Term” means the first term for the Products defined in Exhibit A, or if no such term period is defined, twelve (12) months, commencing on the Effective Date or the completion of all the Wemapac obligations under the contract whichever is earlier.
“Non-Production” or “NP” means the use of the Products for testing, development, and quality assurance purposes only.
“Products” means the Wemapac Cloud Service, and/or Wemapac Software licensed and/or purchased by Customer under the Agreement.
“Professional Services” means the installation, configuration, training, or other professional services described in Section 4 and further identified in Exhibit A (or, for Additional Services, in a mutually executed Statement of Work).
“Software” means any Wemapac software programs licensed by Wemapac to Customer together with all Updates, as further described in the Documentation and Exhibit A.
“Support” has the meaning set forth in Section 7.
“Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes.
“Term” means the Initial Term and any Extension Term applicable to each Wemapac Product.
“Updates” means all Software and Service updates and enhancements that Wemapac generally makes available at no additional charge to its customers of the Software or Cloud Service listed in Exhibit A (as applicable) who are current in payment of applicable fees.
“Users” means Customer’s and its Affiliates’ employees, agents, independent contractors, customers, 3rd party developers, each who are authorized by Customer to use the Products and/or whose information is transmitted through the Products.
Additionally, in this Agreement, capitalised terms defined by inclusion in quotations and/or parenthesis shall have the meanings so ascribed.
- TERMS OF THE PRODUCTS
- Subject to the terms of the Agreement, Wemapac grants the Customer a non-exclusive, non-transferable (except to a successor-in-interest, as permitted hereunder) license to use and to allow its Users to use the Products listed under the Exhibit during the Term. The Customer’s right to use the Products is limited to the volume and other restrictions contained in the Exhibit and the Documentation. Additionally, Wemapac agrees and acknowledges that Users will be provided with the right to access, in accordance with the terms of this Agreement, the Products as necessary.
- RESPONSIBILITIES OF THE PARTIES
- As between the parties, the Customer is responsible for:
- all activities conducted under its User logins to the extent they are under the Customer’s control;
- obtaining and maintaining any Customer Equipment and any ancillary services needed to connect to, access or otherwise use the Products; and
- ensuring that the Customer Equipment and any ancillary services are compatible with the Products and comply with all configuration requirements set forth in the Documentation based on the information provided by Wemapa
- The Customer represents, and warrants that, unless otherwise agreed under this Agreement, the Customer will use the Products solely for its internal purposes, in compliance with applicable law, and shall not:
- resell, sublicense, lease, time-share or otherwise make the Products available to any third party;
- send or store infringing or unlawful material using the Products;
- attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Products or the data contained therein;
- modify, copy or create derivative works based on the Products;
- reverse engineer the Products;
- propagate any virus, worms, Trojan horses, or other programming routine intended to damage any system or data;
- access the Products for the purpose of building a competitive product or service or copying its features or user interface;
- use the Products, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without Wemapac’s prior written consent; or
- permit access to the Products by a direct competitor of Wemapac other than specified under Clause 1 above. In the event Customer has a Non-Production license to the Products, Customer shall only use such Products for Non-Production purposes.
- If Customer fails to comply with the obligations set forth in Section 2, upon at least three (3) days’ notice Wemapac may inform Customer thereof and reserves the right to suspend Customer’s use of the Products until such failure is remedied
- WEM APAC shall:
- maintain necessary controls for the security and protection of any Customer Data and Customer Equipment managed by Wemapac (including, encrypting, masking, securing Customer Data and maintaining regular data backups or data archives), and ensure that Software and Professional Services provided under this Agreement do not compromise, affect or interfere with the Customer Equipment in any way.
- implement and maintain data classification, access management,
- take all reasonable measures to prevent any malpractice, circumvention or unauthorized use (including unauthorized access, storage, downloading, transfer, disclosure) of Customer Data or Customer Equipment managed by Wemapac.
- ensure that it has appropriate processes in place for identifying, reviewing and reporting any (i) unauthorized use (including unauthorized access, storage, downloading, transfer, disclosure) of the Customer Data or Customer Equipment managed by Wemapac, whether intentional or inadvertent; (ii) malpractice; and (iii) any security breaches affecting Customer Data or Customer Equipment managed by Wemapac along with the action taken, within immediately and in no event later than two (2) hours from the time Wemapac becomes aware of the breach to the Customer. Wemapac shall also ensure that it has appropriate processes in place for identifying, reviewing and reporting any security breaches affecting the Software that may impact its ability to provide the Software or the Professional Services.
- not permit any party or person to, access or use the Customer Data or Customer Equipment managed by Wemapac, or Software provided to the Customer under this Agreement, except as expressly permitted by this Agreement. Without limiting the generality of the foregoing, Wemapac shall not permit any party or person (including itself) to:
- (i) gain or attempt to gain unauthorized access to Customer Data, Customer Equipment or Software which Wemapac has not been expressly authorized pursuant to this Agreement;
- (ii) access or use the Customer Data, Customer Equipment, Software or Professional Services in any manner or for any purpose that violates any applicable law or the rights of others, impair anyone else’s use of it;
- (iii) store or transmit malicious code, files, scripts, agents or programs intended to do harm (including without limitation viruses, worms, time bombs and Trojan horses);
- (iv) perform or disclose any security testing that impacts the Customer’s use of the Software of Professional Services without Customer’s prior written consent;
- (v) remove, alter or otherwise render illegible the Customer’s logo, trademark, copyright notice or other proprietary or confidentiality markings that may be published pursuant to Wemapac’s obligations under this Agreement; and
- In case the occurrence of any of the circumstances described in Clauses 2(c), 3.2(d) and 3.2(e) come to the knowledge of Wemapac, and where such circumstances may impact its ability to provide the Software or Professional Services, it shall promptly inform the Customer of the same, and shall remedy such circumstances at the earliest.
- assist the Customer with any claims from third parties in relation to the Software or Professional Services, and provide the Customer with any required information, resources and manpower which the Customer may reasonably request.
- PROFESSIONAL SERVICES
Wemapac provides Professional Services in the following manner and any such Professional Services will be identified as such under the Exhibit: (a) “Set-Up” Professional Services include standard product installation and configuration and are further defined in the Wemapac Set-Up specification sheet; and (b) “Additional Services” may be provided by Wemapac in limited circumstances and will first be agreed upon in a mutually executed statement of work (the “SOW”) that specifically incorporates this Agreement by reference.
- As between the Customer and Wemapac, the Customer shall retain all ownership rights of the Customer Data and Customer’s Confidential Information. Except as otherwise expressly identified in a SOW, as between Customer and Wemapac, Wemapac shall have and retain all ownership rights in the Products and all work developed or created by Wemapac during the course of providing Professional Services to Customer (if any). Wemapac hereby grants Customer a royalty-free, fully paid-up, non-exclusive license to use all work developed or created that is provided to Customer as a result of providing Professional Services to Customer on the same terms and conditions as the Products. In addition to the foregoing, in the event Wemapac assists Customer in defining its policies (“Policy Definitions”) and then configures the Products with the Policy Definitions, Wemapac hereby grants Customer a royalty-free, fully paid-up, nonexclusive, perpetual, irrevocable, worldwide, transferable license to use, copy, and distribute the Policy Definitions solely for its internal purposes.
- WEM APAC shall own any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or its Users relating to the Products.
- No license, right or interest in any Wemapac or Wemapac or Customer trademark, trade name or service mark is granted hereunder. WEM APAC acknowledges that it shall require the Customer’s prior written consent to mention the Customer in its indicative list of clients and projects in its website, proposals, marketing materials, brochures and/ or similar documents. Any usage of Customer’s name, logo or trademark by Wemapac in any such document shall be with the Customer’s prior written consent.
- The Fees for the Products are as stated in the Exhibit and are effective during the Initial Term and Extended Terms specified therein. Unless otherwise stated in the Exhibit, Fees for the Initial and Extended Terms are due and payable upon the Effective Date. Any additional fees that are calculated in arrears will be invoiced at the end of the month that they were accrued for. Fees for any Extension Terms are due in accordance with the above, except that they are due on the effective date of the renewal.
- Upon execution of this Agreement, payment obligations are non-cancelable and, except as expressly provided in this Agreement, upon payment, all payments made by Customer are non-refundable. Unless otherwise specified in the Exhibit, all fees due hereunder shall be due and payable within thirty (30) days of receipt of invoice, except any fees that Customer disputes in good faith within such 30-day period and provide reasonable supporting information about such dispute. Customer shall provide Wemapac with a purchase order upon execution of this Agreement, or if Customer does not provide Wemapac with such purchase order, Customer authorizes Wemapac to accept this Agreement in lieu of a purchase order
- Unless otherwise provided, Wemapac’s fees do not include any taxes. The customer will bear all taxes (including but not limited to GST, etc.) associated with its purchases hereunder, excluding Taxes based on Wemapac’s net income or property. If Wemapac includes on the invoice such Taxes for which the Customer is responsible, the Tax amount invoiced shall be paid by Customer, unless Customer provides a valid Tax exemption certificate authorized by the appropriate taxing authority upon execution of this Agreement. Taxes not included on a WEM APAC invoice shall be the responsibility of the Customer to remit to the appropriate tax authorities as necessary.
- The customer shall reimburse Wemapac for all reasonable, pre-approved and appropriately documented travel and related expenses incurred by Wemapac in performing Professional Services at the Customer’s location outside of Bangalore. The customer shall be responsible for its own travel and out-of-pocket expenses associated with attending any training services at a Wemapac facility.
- WEM APAC shall provide Support, provided the Customer is current on payment of Support fees and all other Fees listed in Exhibit A. Support shall be provided in accordance with the material terms and conditions described in Wemapac’s technical support policy, a copy of which may be found at http://wemapac.com/documents/Wemapac-support-servicescurrent.html (“Support”)
- In the event of the termination of the contract, WEM APAC would provide the Customer data it its possession if any, to the Customer on request, within 7 working days.
- Each party represents and warrants that: (a) it has the legal power to enter into and perform under this Agreement; and (b) it shall comply with all laws applicable to its performance hereunder (in the case of Wemapac) or applicable to its use of the Products (in the case of Customer)
- Except as expressly provided herein, to the extent permitted by applicable law neither party makes any warranties of any kind, whether implied, statutory or otherwise, including any warranties of merchantability or fitness for a particular purpose. WEM APAC does not warrant the operation of the products and results of the Professional Services will be uninterrupted or error-free.
- INTELLECTUAL PROPERTY INDEMNITY
- Wemapac shall defend, indemnify and hold Customer and the Users harmless against any damages, settlements or costs (including reasonable attorneys’ fees) incurred in connection with liabilities, damages, losses, expenses, fines, claims, demands, suits, judgments, or proceedings (including, reasonable attorney’s fees, costs and expenses thereto) (“Claims“) made or brought against Customer by an unaffiliated third party alleging that the use of the Products as contemplated hereunder infringes or threatens to infringe the intellectual property rights of such third party, provided that Customer:
- promptly gives written notice of the Claim to Wemapac;
- gives Wemapac sole control of the defence and settlement of the Claim (provided that Wemapac may not settle any Claim without Customer’s consent unless it unconditionally releases Customer of all liability); and
- provides to Wemapac, at Wemapac’s cost, all reasonable assistance requested by Wemapac.
- WEM APAC may, at its sole option and expense:
- procure for Customer the right to continue using the Products under the terms of this Agreement;
- replace or modify the Products to be non-infringing without a material decrease in functionality and specifications; or
- if the foregoing options are not reasonably practicable, terminate the license for the infringing Products and refund the Customer the prepaid fees for the remainder of the Initial Term or then-current Extension Term after the date of termination.
- Excluded from Wemapac’s indemnification obligations are Claims arising out of the Customer’s use of the Products:
- in combination with any product, software, service or device not furnished by Wemapac or approved in writing by Wemapac; or
- other than in accordance with this Agreement.
- As used herein, “Confidential Information” means all proprietary information of a party (“Disclosing Party“) disclosed to the other party (“Receiving Party“), whether orally or in writing, that is maintained as confidential by the Disclosing Party and either designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including, pricing and other terms reflected in the Exhibit), the Customer Data, details of Customer Equipment, Products (including, Software, Updates and source code), Documentation, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (b) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (c) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (d) is received from a third party without breach of any obligation owed to Disclosing Party.
- Receiving Party shall not disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except to its attorneys and accountants and to comply with applicable laws or with Disclosing Party’s prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). WEM APAC will use commercially reasonable efforts to maintain the confidentiality of Customer Data in accordance with all applicable laws and, except as required by applicable law, to not disclose Customer Data to any third party for any purpose other than to provide the Products or Professional Services to Customer. Notwithstanding the foregoing, Wemapac and Wemapac may use, for its internal purposes, data, text, and files that pass through and/ or maybe generated by the use of the Products in an anonymized format. Each party represents and warrants that it will collect, maintain and handle all personal data in compliance with all applicable data privacy and protection laws. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information.
- If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the disclosure.
- Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party’s Confidential Information and, upon request, destroy all material containing such confidential information.
- Wemapac and the Customer shall comply, at all times, with any and all applicable laws relating to personal data protection and any and all legal conditions that must be satisfied in relation to the collection, transfer, processing, storage, and destruction of personal data as defined under the Information Technology (Reasonable Security Practices and Procedures) Rules, 2011. The Customer agrees that, if Wemapac requires access to personal data for the provision of the Software or performance of Professional Services contemplated hereunder, the Customer will obtain requisite approvals from its students, employees, officials and agents prior to sharing any personal data with Wemapac. WEM APAC will not under any circumstance use any personal data that is processed for the provision of the Software or performance of Professional Services, for any purpose other than permitted under this Agreement. WEM APAC shall, with respect to personal data within the control of Wemapac, assist the Customer to the extent necessary to comply with its obligations under applicable data protection laws. Customer agrees that Wemapac may transfer these documents, physically or electronically, to its personnel and affiliates only in connection with the provision of Software or performance of Professional Services under this Agreement and that it shall ensure that all transferees treat any personal data under obligations equivalent to those in this Agreement. WEM APAC shall ensure that their agreements reflect all such obligations. WEM APAC shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction or damage.
- LIMITATION OF LIABILITY
- EXCEPT (a) FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS; (b) CUSTOMER’S FAILURE TO PAY ANY FEES DUE UNDER THIS AGREEMENT; OR (c) IN THE EVENT OF EITHER PARTY’S UNAUTHORIZED USE, DISTRIBUTION OR DISCLOSURE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY OR (iV) EITHER PARTY’S BREACH OF SECTION 10 (“CONFIDENTIALITY”), IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE SUBSCRIPTION FEES RECEIVED BY WEMAPAC TOWARDS EITHER THE INITIAL TWELVE (12) MONTH PERIOD OR RENEWAL TWELVE (12) MONTH PERIOD OF THE CONTRACT WHEN THE CLAIM ACCRUED.
- IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- TERM AND TERMINATION
- This Agreement is effective on and from 1 July 2021 (“Effective Date”) and continues until all licenses granted in accordance with this Agreement and the applicable Exhibit have expired or have been terminated. The Initial Term applicable to the Exhibit A commences upon Customer’s execution of such Exhibit A and unless mutually agreed in writing by the parties, shall renew at the end of the Initial Term or then-current Extension Term.
- A party may terminate this Agreement for a cause:
- upon thirty (30) days written notice to the other party of a material breach of this Agreement if such breach remains uncured at the expiration of such period;
- immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; or
- as otherwise provided herein.
- Either party may terminate the Agreement immediately by written notice if no Exhibit is in effect.
- The parties’ rights and obligations under Sections 5, 6, 9, 10, 11, 12, 13.4, and 14 shall survive termination of this Agreement.
- The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third-party beneficiaries to this Agreement.
- Notices shall be in writing, either by registered post or sent using a recognized private mail carrier.
- No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Customer and Wemapac. To the extent of any conflict between this Agreement and any other schedule or attachment, this Agreement shall prevail unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or in any other order document (other than a statement of work, or another mutually executed order document expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. This Agreement, which includes all exhibits, documents referenced herein, statements of work and attachments hereto represents the entire agreement of the parties and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
- No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided herein, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
- Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to a natural disaster, strikes, industrial disputes, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, quarantines, embargoes and other similar governmental action which (a) prevents a party from performing any of its obligations, and (b) is beyond the control of, and without the fault or negligence of, such party, and (c) by the exercise of reasonable diligence such party is unable to prevent or provide against (“Force Majeure Event“). Provided however that, the pandemic on account of COVID-19 and notification of lockdowns and containment zones by governmental authorities shall not be characterized as a Force Majeure Event. The affected party will immediately notify the other in reasonable detail of the Force Majeure Event and shall take all reasonably necessary steps to resume full performance of this Agreement as soon as possible. If a Force Majeure Event continues for more than thirty (30) days, either party may, by written notice to the other Party, terminate this Agreement, without liability.
- Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other party. Any attempted assignment in breach of this Section shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- This Agreement shall be governed exclusively by the laws of Australia without regard to its conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. The parties hereby consent to the exclusive jurisdiction of the courts in Melbourne, Australia for any resolution of any disputes arising out of this Agreement.
|Product/Service||Description||Quantity||Price per Year|
|2||Customization/New Development||Per man-day||
|Taxes Extra at Actuals|
- Product Invoicing
- All Products ordered under Exhibit A will be invoiced as agreed between the parties.
- WEM APAC shall manage the operation and maintenance of the AWS infrastructure servers on behalf of the Customer.
- Support shall be invoiced at 21 % of the product value
- Extended Term
The Initial Term will be automatically renewed for additional twelve-month periods if not agreed otherwise.
- Scope of Services: To be agreed mutually