SHOWITMAX SOFTWARE LICENSE AND SERVICE AGREEMENT
This Agreement (“Agreement”) is entered into by and between Meditab Software India Pvt. Ltd., having its principal place of business at 219/A, Kalasagar Mall, Sattadhar Cross Road, Ghatlodiya, Ahmedabad, Gujarat 380061, India (“Provider”), and the entity or individual that accepts or is deemed to have accepted this Agreement by accessing, using, or paying for the Software (“Client”).
WHEREAS, the Provider has developed and owns a proprietary software platform known as Showitmax ("Software"); and
WHEREAS, the Client desires to use the Software under the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set out herein, the parties agree as follows:
1. Definitions
1.1 "Software" means the Showitmax software platform, and any related services provided by the Provider.
1.2 "Confidential Information" has the meaning set forth in the Mutual Non-Disclosure Agreement (MNDA) signed by both parties.
1.3 “Inventory” means the sites added in the portal; sites can be hoardings, kiosks, unipole, etc.
1.4 "User Data" means any data, information, or material provided or submitted by the Client to the Software in the course of using the Software.
1.5 "Provider IP" means the Software, the documentation, and any and all intellectual property provided to the Client or any Authorized User in connection with the foregoing. This includes any data or content derived from Provider's monitoring of Client's access to or use of the Software.
2. License Grant
2.1 License. Provider grants to Client a non-exclusive, non-transferable, revocable license to access and use the Software solely for the Client's internal business operations.
2.2 Restrictions. Client shall not:
(a) Modify any part of, copy any part of, or create derivative works, including substantially similar works, based on the software;
(b) Reverse engineer, decompile, or disassemble the Software;
(c) Remove any proprietary notices from the Software;
(d) Rent, lease, distribute, sell, license, sublicense, assign, or otherwise transfer the Software to any third party.
(e) Use the Software in any manner that violates any applicable local, state, national, and international laws and regulations, including export regulations.
3. Client Responsibilities
3.1 Compliance. Client shall comply with all applicable local, state, national, and foreign laws in connection with its use of the Software, including those related to data privacy, international communications, and the transmission of technical or personal data.
3.2 Account Information. Client shall provide accurate, current, and complete information as necessary for the Provider to communicate with the Client.
3.3 Security. Client shall maintain the confidentiality of its access credentials and is responsible for all activities that occur under its accounts.
4. Provider Responsibilities
4.1 Uptime and Support. Provider shall use commercially reasonable efforts to maintain the availability of the Software and provide support. Provider provides system support 24 hours a day, 7 days a week. The aforementioned hours of support are not material to this Agreement and may be modified at Provider’s own discretion with prior notice. Support for services provided by third parties is subject to the vendors’ support schedule. Provider shall not be held in breach under this Agreement or liable for its and its vendors’ support unavailability due to force majeure and other reasons beyond Provider’s control.
4.2 Provision of Access. Provider shall provide Client with access to the Software, including necessary passwords, network links, or connections to allow Client to access the Software.
4.3 Data Security. Provider shall implement and maintain reasonable administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of User Data.
4.4 Confidentiality. Provider shall maintain the confidentiality of all User Data and will not disclose User Data to any third party except as required by law or as expressly permitted by the Client. In the event of a data breach, Provider will promptly notify Client within 72 hours of becoming aware of the breach and will take appropriate measures to mitigate any potential damage.
5. Fees and Payment
5.1 Fees. Client shall pay to Provider the fees specified in Invoice sent to the Client.
5.2 Payment Terms. Payment is due within seven (7) days from the date of the invoice. Late payments may incur interest at the rate of 1.5% per month.
5.3 Taxes. Client shall be responsible for all applicable taxes, including but not limited to sales, use, value-added, withholding, and any other similar taxes, duties, or governmental charges, excluding taxes based solely on Provider's net income.
6. Proprietary Rights
6.1 Ownership. Provider retains all right, title, and interest in and to the Software, including all intellectual property rights.
6.2 Feedback. Any suggestions, ideas, or feedback provided by Client regarding the Software shall be the sole property of Provider.
6.3 Protection of Proprietary Features. The Client agrees not to:
(a) Show, demonstrate, or disclose the features, design, or functionality of Showitmax to any third parties without the prior written consent of the Provider; (b) Use any part of Showitmax to develop, enhance, or market a competing product; (c) Disclose any feedback or insights about the unique features of Showitmax to competitors of the Provider.
7. Confidentiality
7.1 Confidential Information. The parties acknowledge that during the term of this Agreement, each party may have access to Confidential Information of the other party. The receiving party shall use the same degree of care to protect the Confidential Information as it uses to protect its own Confidential Information but in no event less than reasonable care.
7.2 Exclusions. Confidential Information does not include information that:
(a) Is or becomes publicly known through no breach of this Agreement;
(b) Is received from a third party without breach of any obligation of confidentiality;
(c) Is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
(d) Is disclosed pursuant to the order of a court or other governmental authority, provided that the receiving party shall give prompt notice to the disclosing party and use reasonable efforts to obtain confidential treatment of such information.
8. Term and Termination
8.1 Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until three (3) years from such date (the “Initial Term”). This Agreement will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”). Client shall also be solely liable to pay all past due fees and charges.
8.2 Termination. In addition to any other express termination right set forth in this Agreement:
(a) Provider may terminate this Agreement, effective on written notice to Client, if Client: (i) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Provider’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3.1 or Section 5;
(b) Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured sixty (60) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(c) Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(d) Except as otherwise provided for in this Agreement, neither Party shall have the right to terminate at will for any reason.
8.3 Effect of Expiration or Termination.
(a) Upon termination of this Agreement, Client shall immediately:
(i) discontinue use of the Provider IP and, without limiting Client’s obligations under Section 6, Client shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Client’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Client to any refund.
(ii) promptly identify in writing a named individual authorized to whom Provider can deliver a copy of any Client Data stored by the Provider. Provider will deliver such identified representative with a copy of your Data. Upon confirmation of receipt of Client Data, Provider will delete all of Client Data residing on hardware controlled by Provider to the extent allowed by law. Client may procure additional transition services at Provider’s then-current hourly rates and standard terms and conditions.
9. Limitation of Liability
9.1 Disclaimer of Warranties. The Software is provided "as is" without warranty of any kind. Provider disclaims all warranties, whether express, implied, statutory, or otherwise, including but not limited to any warranties of merchantability, fitness for a particular purpose, and non-infringement.
9.2
Limitation of Liability. In no event shall Provider be liable for any indirect, incidental, special, consequential, or punitive damages, or any loss of profits or revenues, whether incurred directly or indirectly, or any loss of data, use, goodwill, or other intangible losses, resulting from: (a) The use or inability to use the Software; (b) Any unauthorized access to or use of the Client’s User Data; (c) Any content obtained from the Software; (d) Any conduct or content of any third party on the Software. In no event shall Provider's total liability arising out of or related to this Agreement exceed the amount paid by Client to Provider in the one (1) month preceding the event giving rise to the claim.
10. Indemnification
10.1 Indemnification by Client. Client shall indemnify, defend, and hold harmless Provider and its officers, directors, employees, and agents from and against any claims, liabilities, damages, losses, and expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with:
(a) Client’s use of the Software;
(b) Client’s violation of this Agreement;
(c) Client’s violation of any laws or regulations.
11. General Provisions
11.1 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
11.2 Marketing. Provider may contact Client regarding goods, services, or promotional offers that may be of interest to Client that are offered by Provider or by third parties which may be related or unrelated to Provider. Provider shall require the recipient to both keep Client’s information confidential and not use it for any purpose except for such purposes. Client may opt-out at any time by sending an email to support@showitmax.com.
11.3 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a 'Notice') must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice). Notices may be delivered by personal delivery, nationally recognized overnight courier, facsimile, email (with confirmation of transmission), or certified or registered mail (return receipt requested).
11.4 Force Majeure. In no event shall either Party be liable to the other Party or be deemed to have breached this Agreement for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments) if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, governmental closure orders, epidemics, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
11.5 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
11.6 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
11.7 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of India without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of India. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the courts located in Ahmedabad, Gujarat, India, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
11.8 Assignment. Client may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of Provider, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
11.9 Export Regulation. Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval) that prohibit or restrict the export or re-export of the Software or any Client Data outside the Republic of India.
11.10 Non-solicitation. During the period commencing on the Effective Date and ending two (2) years following the termination of this Agreement, neither Party shall, without the other Party’s prior written consent, directly or indirectly; (i) solicit or encourage any person to leave the employment or other service of the other Party or its Affiliates; or (ii) hire on behalf of either Party or any other person or entity, any person who has left the employment within the two (2) year period following the termination of that person’s employment with the other Party.
11.11 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or in the case of Client, Section 2.2 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages, or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
11.12
Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.