1.1. Definition Clause
"End User" means the User or the Licensee along with their affiliates / partners. "Software" means the application and content of digital curriculum material including animations, graphics, video, audio etc which have been created, sourced and developed/ invented by BORG SUITE with considerable time and expense. "Device" means the hardware on which the Software is to be used by You.
1.2. Software / Licensed Product
a ) The Software is owned by BORG SUITE and its structure, organization and code are valuable trade secrets of BORG SUITE. Except as expressly set forth in this agreement, this EULA does not grant you any intellectual property rights in the Software, and you cannot use the Software except as specified herein.
b ) The Software is licensed, not sold. BORG SUITE grants you a limited license to use the Software only on one (1)/more PC/s/Laptop/s/Mobile/s Devices. The Software may create data files automatically for use with the Software, and you agree that any such data files are deemed to be a part of the Software.
c ) The Software is licensed as a single product, and you may not separate its component parts for use on more than one (1) PC/Laptop Device and one (1) mobile device unless expressly authorized by BORG SUITE
1.3. Ownership and Proprietary Rights
All Intellectual Property including patents, copyrights, trademarks, trade secrets and other ownership rights in the Software any corrections, bug fixes, enhancements, updates or other modifications, including custom modifications thereto are and shall remain with BORG SUITE. The source code of the Software and all information regarding the design, structure or internal operation of the Software are valuable trade secrets of BORG SUITE ("Confidential Information"), provided however, that "Confidential Information" shall not include information which otherwise would be Confidential Information to the extent that such information was publicly known prior to the time BORG SUITE received it, or became known BORG SUITE through no violation of any other, confidentiality obligations to any other party regarding the Software.
1.4.Excluded Software and Open Source components
a ) Notwithstanding the foregoing limited license grant, you acknowledge that the Software subject to other terms and conditions governing the use of such Software other than this agreement.
b ) Certain Excluded Software may be covered by open source Software licenses, which means any Software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including but not limited to any license that, as a condition of distribution of the Software licensed under such license, requires that the distributor make the Software available in source code format.
c ) Terms and conditions applicable to Open Source Components are provided to you together with this agreement and/or stored in your Device in locations.
d ) To the extent required by the licenses covering Open Source Components, the terms of such licenses will apply in lieu of the terms of this agreement.
e ) To the extent the terms of the licenses applicable to Open Source Components prohibit any of the restrictions in this agreement with respect to such Open Source Components, such restrictions will not apply to such Open Source Component.
f ) To the extent the terms of the licenses applicable to Open Source Components require BORG SUITE to make an offer to provide source code in connection with the Software, such offer is hereby made.
1.5. Mandatory Product Activation
a ) The license rights granted under this Agreement is limited to the first One year, i.e., 365 days after the license has been activated using the specified process.
b ) There are technological measures in this Software that are designed to prevent unlicensed or illegal use of the Software.
c ) You agree that BORG SUITE may use those measures and you agree to follow any requirements regarding such technological measures.
1.6. Upgrades and Maintenance Services
BORG SUITE may provide upgrades as and when required.
1.7. License Restrictions
a ) You may not make or distribute copies of the Software, or electronically transfer the Software from one Device to another or over a network.
b ) You may not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble the Device, or otherwise reduce the Software to a human-perceivable form.
c ) Unless otherwise provided herein, you may not rent, lease, or sublicense the Software.
d ) You may not modify the Software or create derivative works based upon the Software.
e ) You may only use the Not for Resale Version of the Software to review and evaluate the Software.
f ) As required by law, you shall not, host, display, upload, modify, publish, transmit, update or share any information that:
g ) BORG SUITE shall not directly or indirectly; and shall ensure that you do not:
1.9. Consent to Use Data
a ) You agree that BORG SUITE and its affiliates, partners and agents may read, collect, transfer, process and store certain information from the Software. Information shall mean and include, but is not limited to:
b ) BORG SUITE and its affiliates may use and disclose Information subject to applicable laws in order to improve its products and services or to provide the same to you.
c ) BORG SUITE and its affiliates will not intentionally use Information to personally identify the owner or the user.
1.10. Commercial Release or Beta Software If the Software you have received with this EULA is a pre-commercial release or a beta version, then you understand the Software is pre-release, non-commercial version and does not represent a final product of BORG SUITE. The Software may contain bugs, errors and other problems that could cause computer system failures and data loss. THEREFORE, ALL PRE-RELEASE OR BETA SOFTWARE IS PROVIDED ON AN 'AS-IS' BASIS AND BORG SUITE DISCLAIMS ANY AND ALL WARRANTIES OR LIABILITY TO YOU OF ANY KIND.
1.11. Limited Liability
a ) THE LIABILITY OF BORG SUITE AND ITS AFFILIATES OR LICENSORS TO THE END USER OR ANY THIRD PARTY ARISING FROM THE END USER OR USE OF THE SOFTWARE, OR THE PROVISION OF SUPPORT SERVICES, INSTALLATION, TRAINING OR OTHER SERVICES IN CONNECTION THEREWITH, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT, SHALL NOT EXCEED THE AMOUNT PAID FOR THE SOFTWARE.
b ) IN NO EVENT WILL BORG SUITE AND ITS AFFILIATES OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, INCONSEQUENTIAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
1.12. Intellectual Property Rights
a ) You are not permitted to directly or indirectly alter, reverse engineer, modify, or create any derivative works of the Software including the content provided therein, the operating system, hardware, device and the platform, or any other BORG SUITE Intellectual Property.
b ) You shall not, directly or indirectly, attempt to discover or expose the source code underlying any BORG SUITE Intellectual Property.
c ) You agree that, as between you and BORG SUITE, all the intellectual property rights in the BORG SUITE Intellectual Property are owned solely and exclusively by BORG SUITE.
d ) You shall not directly or indirectly:
e ) BORG SUITE trademarks, logos, images, service marks, trade names (collectively the "Trademarks") and other distinctive branding features displayed on or through the Software are registered and unregistered Trademarks of BORG SUITE and shall not be used in connection with products and/or services that are not related to, associated with, or sponsored by their rights holders that are likely to cause customer confusion, or in any manner that disparages or discredits their rights holders. All Trademarks not owned by BORG SUITE are the property of their respective owners. Your misuse of the Trademarks displayed is strictly prohibited.
f ) As between the end user and BORG SUITE, BORG SUITE owns, solely and exclusively, all rights, title and interest in and to the Software, all the content, code, data and materials thereon, the look and feel, design and organization of the Software, and the compilation of the content, code, data and materials on the Software, including but not limited to any copyrights, trademark rights, patent rights, database rights, moral rights and other intellectual property and proprietary rights therein, excluding third party content. Your use of the Software does not grant to you ownership of any content, code, data or materials you may access on or through the Software.
g ) Any commercial or promotional distribution, publishing or exploitation of the Software, or any content, code, data or materials on the Software, is strictly prohibited unless you have received the express prior written permission from authorized personnel of BORG SUITE or the otherwise applicable rights holder. Any rights not expressly granted herein, are reserved to BORG SUITE. You agree to abide by all copyright notices, information, or restrictions by BORG SUITE. You must not alter, delete, or conceal any copyright, trademark, patent, or other notices by BORG SUITE.
1.13. Restrictions on Export and Distribution of Software
a ) The Software source code is owned by BORG SUITE and you have been granted a License to use the Software as per the terms of this agreement.
b ) You acknowledge that you shall not distribute the Software to Third Parties.
c ) You acknowledge that any export of proprietary Software or content by you or otherwise using any means is strictly prohibited and punishable under Law.
d ) You further acknowledge that the Software acquired from BORG SUITE or its Third Party Licensors is not intended for use by a foreign End User and such an act is strictly prohibited and shall accrue liability under Law.
a ) The End User agrees to indemnify, defend and hold BORG SUITE harmless from any claim including a claim of patent, trade secret or copyright infringement asserted against BORG SUITE by virtue of End User's use of the Software.
b ) BORG SUITE shall have no liability for any claim of infringement that results from: (a) any modification of the Software by the End User; (b) any failure by the End User to implement Upgrades to the Software as supplied by BORG SUITE; or (c) the combination, operation, or use of the Software with non-compatible programs, data or documentation, if such infringement would have been avoided by the use of the Software provided by BORG SUITE without such combination, operation or use. The c c ) End User shall indemnify and keep BORG SUITE and its Affiliates and licensors indemnified from any claims arising due to breach of obligations under this agreement without any pecuniary limits.
d ) BORG SUITE warrants that the Software and related services shall conform to the written specifications.
1.15. Representations and Warranties
a ) BORG SUITE represents and warrants that it is fully able and competent to enter into the terms, conditions, obligations, representations and warranties set forth in this Agreement.
b ) The End User represents and warrants that it is fully able and competent to enter into the terms, conditions, obligations, representations and warranties set forth in this Agreement.
c ) All other representations and warranties, whether express or implied, are explicitly disclaimed by both Parties hereto.
a ) FOR ANY BREACH OF WARRANTIES, THE END USER'S SOLE AND EXCLUSIVE REMEDY AND BORG SUITE'S ENTIRE LIABILITY SHALL BE: (A) REPERFORMANCE OF THE DEFICIENT SERVICES; OR, IF BORG SUITE CANNOT SUBSTANTIALLY CORRECT SUCH BREACH IN A COMMERCIALLY REASONABLE MANNER, THE END USER MAY END THE RELEVANT SERVICES.
b ) TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE, IN CONNECTION WITH THIS AGREEMENT AND ANY SERVICES PROVIDED HEREUNDER.
c ) BORG SUITE shall have no warranty obligations hereunder in case of defects which stem from the fact that the Software (i) were used contrary to the provisions of Agreement or any documentation (ii) presented an error attributable to the use of the services in an application or environment for which it was not designed or contemplated or which was not expressly specified by BORG SUITE; (iii) were used in combination with other products, accessories, Software or data not supplied or approved by BORG SUITE; or (iv) were modified by the End User or third parties.
d ) BORG SUITE assumes no responsibility and shall have no warranty obligation hereunder in case of defects / typographical errors / other errors with reference to the content.
1.17. Exclusion of Warranty
a ) THE SOFTWARE AND ACCOMPANYING DOCUMENTATION ARE FURNISHED TO YOU 'AS IS' AND 'AS AVAILABLE' AND WITHOUT WARRANTIES, DUTIES OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND.
b ) BORG SUITE, ITS AFFILIATES, AND THIRD PARTY LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, DUTIES AND CONDITIONS, EXPRESS (EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE BY THIS EULA) OR IMPLIED, STATUTORY OR OTHERWISE, OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
c ) BORG SUITE, ITS AFFILIATES, AND THIRD PARTY LICENSORS DO NOT WARRANT THAT THE SOFTWARE OR ACCOMPANYING DOCUMENTATION, WILL MEET YOUR REQUIREMENTS OR PROVIDE SPECIFIC RESULTS, OR THAT THEY WILL BE UPDATED, OR THAT THE OPERATION OF ALL OR ANY OF THEM WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY DEFECTS WILL BE CORRECTED.
d ) FURTHERMORE, BORG SUITE, ITS AFFILIATES, AND THIRD PARTY LICENSORS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR ACCOMPANYING DOCUMENTATION IN TERMS OF THEIR ACCURACY, RELIABILITY, COMPLETENESS OR OTHERWISE.
e ) BORG SUITE, ITS AFFILIATES AND THIRD PARTY LICENSORS SHALL HAVE NO RESPONSIBILITY FOR THE SECURITY OF, TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY OF YOUR COMMUNICATIONS OR PERSONALIZED SETTINGS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BORG SUITE, ITS AFFILIATES OR ANY THIRD PARTY SHALL CREATE A WARRANTY, DUTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY, DUTY AND CONDITION.
f ) Without limiting the generality of the foregoing, you further understand, acknowledge and agree that the Software is not designed or intended for use on any other device other than the device recommended by BORG SUITE.
e ) You expressly acknowledge and agree that any other hardware, Software, content or data could be damaged by installing or using the Software on any other device other than the Device recommended by BORG SUITE, and BORG SUITE, its affiliates and Third Party Licensors are not responsible for any such damage.
a ) THE END USER ACKNOWLEDGES THAT THE SOFTWARE MAY NOT BE MAY NOT BE FREE FROM DEFECTS AND MAY NOT FULFILL / SATISFY ALL OF THE BUYERS NEEDS AND FOR WHICH BORG SUITE ASSUMES NO RESPONSIBILITY AND DISCLAIMS ALL LIABILITY.
b ) BORG SUITE IS NOT RESPONSIBLE FOR ANY TECHNICAL MALFUNCTION OR OTHER PROBLEMS OF ANY TELEPHONE NETWORK OR SERVICE, COMPUTER SYSTEMS, SERVERS OR PROVIDERS, COMPUTER OR MOBILE PHONE EQUIPMENT, SOFTWARE, FAILURE OF EMAIL OR PLAYERS ON ACCOUNT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY SITE OR COMBINATION THEREOF, INCLUDING INJURY OR DAMAGE TO A USER'S OR TO ANY OTHER PERSON'S COMPUTER, MOBILE PHONE, OR OTHER HARDWARE OR SOFTWARE, RELATED TO OR RESULTING FROM USING OR DOWNLOADING MATERIALS IN CONNECTION WITH THE WEB AND/OR IN CONNECTION WITH THE SERVICE ASSOCIATED WITH THE SOFTWARE.
c ) ANY SITE CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE / SERVICE OR A THIRD PARTY APPLICATION IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
d ) REFERENCE TO ANY PRODUCTS, SERVICES, PROCESSES OR OTHER INFORMATION, BY TRADE NAME, TRADEMARK, MANUFACTURER, SUPPLIER OR OTHERWISE DOES NOT CONSTITUTE OR IMPLY ENDORSEMENT, SPONSORSHIP OR RECOMMENDATION THEREOF, OR ANY AFFILIATION THEREWITH, BY FEPL.
1.19. Internet Connectivity and Third Party Services
a ) You understand, acknowledge and agree that Internet connectivity and certain content and services available through the device are provided by third parties over which BORG SUITE has no control.
b ) You understand, acknowledge and agree that access to certain device features, including but not limited to downloading applications or browsing or searching the Internet, requires an Internet connection for which you are solely responsible.
c ) BORG SUITE shall not be responsible for the quality, availability and security of any Internet connectivity, Software and services provided by a third party.
1.20. Term and Survival
a ) This agreement shall be effective for one academic year or until terminated as per the terms of this agreement.
b ) BORG SUITE may terminate this agreement immediately, with or without notice, if you fail to comply with the terms of this agreement.
c ) In addition, upon termination you will have no recourse against BORG SUITE, its affiliates or Third Party Licensors for your inability to use the Software.
d ) Any of your obligations under this agreement which by their nature are intended to survive the termination of this agreement and shall continue to apply to you even after the termination of this agreement or you cease to use the Software.
Any notice, request, instruction or other document to be given by a party under this agreement shall be delivered by hand, sent by Speed Post / Registered Post or by facsimile to the recipient's usual fax number or such other fax number which may be notified by that party in accordance with this clause. Email notices shall not be valid unless otherwise mutually agreed although in the event the End User may only be contacted through E-mail, E-mail notices shall be valid. It is understood that email communications will not be accepted as a legal notice/legal claim served on either party.
The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
If any part of this Agreement is for any reason found to be unenforceable, all other parts nevertheless remain enforceable as long as a party's rights under this agreement are not materially affected. In lieu of the unenforceable provision, the parties will substitute or add as part of this agreement a provision that will be as similar as possible in economic and business objectives as was intended by the unenforceable provision.
BORG SUITE may add to, change, or remove any part, term, or condition of this EULA, including but not limited to as it applies to the Software, at any time. Any such additions, changes, or removals may be posted on the BORG SUITE website including affiliated / related websites, sent by email notification to the email address provided by you, or presented to you as part of a process in which you obtain updates or upgrades to the Software, or by any other legally recognizable form of notice, and shall apply as soon as they are posted. By continuing to use the Software after so posted, you are indicating your acceptance thereto.
1.25. Disputes and Governing Law
a ) BORG SUITE shall not be held responsible for disputes arising out of interactions between members / users. BORG SUITE reserves the right, but has no obligation, to become involved in any way with these disputes.
b ) The terms shall be governed by the laws of India without regard to its conflict of law principles.
c ) The user agrees to submit to the personal and exclusive jurisdiction of the courts of New Delhi, India for the purpose of litigating all such claims or disputes.
1.26. Entire Agreement '
This agreement supersedes all prior representations, communications, understandings, or agreements between the parties relating to such subject matter.
1.27. Controlling Agreement/Translation
This License Agreement is prepared and executed in the English language. The English language version shall govern the parties' relationship. Any translation of this License Agreement into any other languages shall be for convenience of reference only and shall have no legal effect, and the English language text shall in any event prevail.