BELLADATI PTE. Ltd’s Standard Terms and Conditions (“COMPANY”) Validity since December 20th, 2019

 

1. Definitions

In this License Agreement the following words  and expressions have the following meanings:

(1) “Add-on Module” shall mean software  module(s) that at any time may by added  on to the Package as further described  on www.belladati.com/en/on-premise

pricelist;

(2) “Annual Maintenance and Support Fee” shall mean the amount identified as such  in the Order Form;

(3) “Package” shall mean the package of  Licensed Software as further described  onwww.belladati.com/en/on-premise

pricelist;

(4) “Parameter Increase” shall mean the  additional Parameter increase to the  Licensed Software that may be obtained  by a Customer during the term of this  License Agreement, as set out on  www.belladati.com/en/on-premise

pricelist;

(5) “Documentation” shall mean all related  user documentation and manuals, in  whatever medium, regarding the proper  installation and use of the Licensed  Software;

(7) ”Effective Date” means the day and year  written in the signature field for  COMPANY in the acceptance section in  the Order Form;

(8) “Total Software License Fee” shall mean  the aggregate fee set forth in Order  Form;

(9) “License Agreement” shall mean all  contractual documents as defined in the  Order Form;

(10) “Licensed Software” shall mean licensed  computer software identified as such in  the Order Form together with the 

Documentation;

(11) “Term” shall have the meaning set forth  in Section 19 of the Terms and  Conditions;

(12) “Upgrade” shall mean the release of a  version of the Licensed Software  containing major changes to the  structure of the Licensed Software where  important new features may be added.  The change to an Upgrade will be  recognized by an increase in value of the  primary version number (e.g. version 3.x  to be replaced by version 4.x); 

(13) “Update” shall mean the release of a  version of the Licensed Software  containing improvements and  adjustments to the Licensed Software,  however not including major structural  changes and/or new important features.  The change to an Update will be  recognized by an increase in value of the  secondary version number (e.g. version  3.0 to be replaced by version 3.1).

2. License Terms

COMPANY grants to the Customer a perpetual  (except as otherwise provided herein), non exclusive, non-transferable and non sublicensable license (“License”) to use the  Licensed Software within the limits for  parameters set forth in the Order Form and on  www.belladati.com/en/on-premise-pricelist and  the Documentation during the Term and  according to the terms and conditions set out  herein. License is limited for use on one physical  or virtual server with one CPU in no clustered  mode. Licence is limited for use in one country or  one State unless agreed otherwise by the  COMPANY. Except as otherwise agreed in  writing by the COMPANY. Licensed Software  must be installed on hardware system owned,  leased or controlled by Licensee. 

Customer may copy the Licensed Software for  back-up or archival purposes, provided that any  copy contains all of the original Licensed

Software’s proprietary notices. Customer may  not: (i) permit other entities or individuals to use  the Licensed Software except under the terms  listed herein, (ii) modify, translate, reverse  engineer, decompile, disassemble (except to the  extent applicable laws specifically prohibit such  restriction and provided that Customer has first  requested from COMPANY the tools necessary  to create interoperable programs), or create  derivative works based on the Licensed  Software, (iii) copy the Licensed Software  (except as specified herein), (iv) export, directly or indirectly, the Licensed Software to any  person or entity outside the United States in  violation of applicable U.S. export laws, (v) sell,  rent, lease, or otherwise transfer rights to the  Licensed Software, (vi) remove any proprietary  notices or labels on the Licensed Software.

License is limited for use on one physical or  virtual server with one CPU in no clustered  mode. License is limited for use in one country or  one State unless agreed otherwise by the  COMPANY

If Customer has purchased a Developer’s  license (as indicated on the Order Form)  Customer may use one copy of the licensed  software and the Software Developer’s Kit to  develop and test custom enhancements. This  also includes support for developers in  accordance with Schedule A-1 for so long as the  customer is subscribing to Maintenance and  Support hereunder.

3. Installation of Upgrade and Update

The Terms and Conditions of this License  Agreement shall apply to the initial copy of the  Licensed Software as well as to any Upgrade or  Update to the Licensed Software subsequently  delivered to Customer. Customer must destroy  all previous copies of the Licensed Software,  however duplicated or archived, within thirty (30)  days of installation of the Upgrade or Update. If  the Upgrade or Update is to a Component  Software of the Licensed Software, it may be  used only as part of the single Licensed  Software package and may not be separated for  individual use. 

4. Maintenance and Support

For one year from the Effective Date, Customer  shall purchase maintenance and support 

services from COMPANY with respect to all  software licensed hereunder. The Annual  Maintenance and Support Fee entitles customer  to the Support services described in Schedule A  and the following maintenance services: (i)  notification of and access to COMPANY software  patches and documentation released by  COMPANY; and (ii) notification of and access to  Updates and Upgrades. Maintenance services  do not include new modules released by  COMPANY that include significantly different  features and functionality, which are packaged  and marketed as separate modules. 

The Annual Maintenance and Support Fee is  due and payable in advance at the time of  payment of the Total Software License Fee. The  Customer may elect between different levels of  support, the alternatives of which are set out in  Schedule A. 

The Annual Maintenance and Support Fee in  subsequent years shall be due and payable on  each anniversary of the Effective Date, unless  Customer notifies COMPANY in writing sixty (60)  days in advance of such anniversary that  Customer desires to terminate maintenance and  support. If Customer terminates maintenance  and support, COMPANY shall be under no  obligation to resume providing such services to  Customer under any circumstances. 

If Customer licenses Add-on Modules or  Parameters Increases effective on any date  other than the Effective Date or any anniversary  thereof, the Annual Maintenance and Support  Fee for such Add-on Modules or Parameters  Increases shall be pro-rated for the remainder of  the year in question. 

Under no circumstances will COMPANY be  responsible for supporting or correcting any  errors in the Licensed Software resulting from  any modifications made to the Licensed  Software by Customer, and COMPANY will not  be liable for any loss or damage of any nature  directly or indirectly caused by such  modifications. Customer must install Updates  that contain bug-fixes in order to receive  Maintenance and Support.

COMPANY may, at its sole discretion, cease  providing Maintenance and Support for any prior  version of the Licensed Software six (6) months  after an Upgrade is made available.

Furthermore, at such time as COMPANY  decides to cease maintaining and supporting the  Licensed Software for its entire customer base,  COMPANY may cease providing Maintenance  and Support two years after such decision is  communicated by written notice to Customer.

5. License Fees

5.1. Invoices

COMPANY shall invoice the Customer in respect  of the Total Software License Fee(s) on the  Effective Date.

5.2. Future Purchases

The Customer may purchase additional  Packages, Add-on Modules and/or Parameters  Increases upon payment to COMPANY of the  fees therefore then in effect. 

6. General Payment Conditions

Payment of Total Software License Fee, Annual  Maintenance and Support Fee and any other  fees shall be made by electronic wire transfer to  a bank account to be designated in writing by  COMPANY. Any invoices shall be due and  payable within 28 days of the invoice date. 

Overdue payments shall bear interest at the rate  of 12% annually, or the maximum permitted by  applicable law, whichever is less, and Customer  shall reimburse COMPANY for all costs  COMPANY incurs attempting to recover  payments due.

The Total Software License Fee, Annual  Maintenance and Support Fee and any other  fees are up-front non-refundable fees. 

All fees, of whatever kind, are exclusive of all  sales taxes, use taxes, value added taxes and  any other similar taxes imposed by any federal,  state, provincial or local governmental entity on  the transactions contemplated by this  Agreement, excluding taxes based upon  COMPANY’s net income. When COMPANY has  the legal obligation to pay or collect such taxes,  the appropriate amount shall be invoiced to and  paid by Customer unless Customer provides  COMPANY with a valid tax exemption certificate  authorized by the appropriate taxing authority.

In the event that any withholding taxes or any  other similar taxes are imposed by any federal,  state, provincial or local governmental entity on 

the transactions contemplated by this License  Agreement Customer shall pay such taxes in  such amounts as are necessary to ensure that  COMPANY receives the full amount of the then  due fees.

7. Delivery

COMPANY shall deliver one copy of the  Licensed Software to Customer, including  software keys to enable use of the Licensed  Software, unless otherwise expressly stated in  the Order Form.

8. Audit Right

COMPANY or its designee shall have the right to  have a reputable third party inspect Customer’s  data processing systems and records for the  sole purpose of verifying that Customer has  complied with these Terms and Conditions and  reporting its findings to COMPANY. Such  inspections will be made on not less than ten  (10) days written notice, during regular business  hours. If the inspection reveals an underpayment  to COMPANY of license fees, the Customer shall  pay to COMPANY the deficit. COMPANY shall  bear the expense of such inspection unless the  inspection reveals license fees that vary more  than five percent (5%) from the license fees paid  to COMPANY, in which case the Customer shall  bear the costs associated with the inspection. 

9. Limited Warranty

9.1 COMPANY is the owner or licensee of  all intellectual property rights in and to the  Licensed Software and there is no pending  litigation against COMPANY which could  materially impact upon its ability to perform its  obligations under this License Agreement.

9.2 COMPANY has full power and right to  license the Licensed Software and perform all  other terms of this License Agreement, and the  use of Licensed Software, or the exercise of the  licenses granted hereunder, will not violate or  interfere with the intellectual property or  contractual rights of any third party, including  without limitation, those rights arising under  copyright, trademark, trade secret or patent law,  provided, however that COMPANY shall not be  liable for breach of representation and warranty if  a violation or interference occurs by reason of  content supplied by Customer, content owners,  end users or other third parties.

9.3 COMPANY warrants that, for a period of  ninety (90) days from the Effective Date, the CD  or other media on which the Licensed Software  is furnished (“Media”) shall be free from defects  in materials and workmanship under normal use  and service. 

9.4 In the event that such media is proven to  be defective, COMPANY’s entire liability and  Customer’s sole and exclusive remedy shall be  replacement of the media or such part of the  media not meeting COMPANY’s limited  warranty, provided that Customer returns the  media or such part of the media to COMPANY  with a copy of Customer’s dated receipt. If  failure of the media or any part of the media has  resulted from accident, abuse, or misapplication  of the Licensed Software, then COMPANY shall  have no obligation to replace the media or any  such part of the media under this limited  warranty.

9.5 For a period of ninety (90) days from the  Effective Date, COMPANY warrants that the  Licensed Software will substantially conform to  the Documentation. Without cost to Customer,  COMPANY shall correct any failure of the  Licensed Software to conform to the foregoing  warranty if the failure is reported in writing in  accordance with the Notices Section during the  warranty period. If COMPANY is unable to  modify the Licensed Software so that it  substantially conforms to the Documentation,  Customer’s sole and exclusive remedy is to  receive a full refund of all amounts paid  hereunder upon return of the Licensed Software.

9.6 COMPANY shall have no obligation or  other liability with regard to any error or non  compliance with the warranties set forth above  that is caused, in whole or in part by; (a)  modifications or alterations to the Licensed  Software made by the Customer; (b) use of the  Licensed Software by the Customer other than  as contemplated herein; (c) products or services  not provided by COMPANY; (d) the negligence  or willful misconduct of Customer; (e) the  Customer’s implementation and installation of  the Licensed Software other than in accordance  with instructions furnished by COMPANY; or (f)  electrical malfunction. COMPANY shall have no  liability to the Customer under this license  agreement, or otherwise, by reason of content  supplied by the Customer, content owners, end  users or other third parties.

10. Indemnification

COMPANY agrees to indemnify and hold  harmless the Customer from and against any  and all third party claims or actions, including  any losses, costs, liabilities, reasonable  attorney’s fees and other expenses arising from  such claim or action, alleging that the Licensed  Software infringes or violates any copyright,  trademark, patent or trade secret of a third party,  provided: (i) the Customer promptly gives written  notice of any claim to COMPANY; (ii) the  Customer provides any assistance which  COMPANY may reasonably request for the  defense of the claim; and (iii) COMPANY has the  right to control of the defense or settlement of  the claim. In any action based on an  Infringement Claim, COMPANY may, at its sole  option, either: (x) obtain for Customer the right to  continue using the Licensed Software, (y)  replace or modify the Licensed Software with  non-infringing software providing substantially  the same functionality, or (z) terminate the  license granted hereunder and give Customer a  pro-rata refund of the license fee paid for the  Licensed Software, calculated on the basis of  straight line depreciation over three years. 

11. Disclaimer of Warranties

THE LICENSED SOFTWARE IS PROVIDED  “AS IS,” WITHOUT WARRANTY OF ANY  KIND, EXCEPT AS STATED IN SECTION 9.  THE ENTIRE RISK AS TO THE RESULT AND  PERFORMANCE OF THE LICENSED  SOFTWARE IS ASSUMED BY CUSTOMER.  EXCEPT AS STATED IN SECTION 9,  COMPANY AND ITS LICENSORS AND  SUPPLIERS MAKE NO WARRANTIES OR  CONDITIONS, EXPRESS, IMPLIED OR  STATUTORY, WITH RESPECT TO THE  LICENSED SOFTWARE OR THE USE OR  OPERATION THEREOF AND SPECIFICALLY  DISCLAIM THE IMPLIED WARRANTIES OF  MERCHANTABILITY OR FITNESS FOR A  PARTICULAR PURPOSE.

12. Limitation of Liability

Except with respect to claims relating to breach  of the confidentiality provisions herein,  intellectual property infringement or use of the  software by Customer outside of the scope of the  license granted herein , under no circumstances  shall either party’s aggregate liability to the other  party arising out of or related to this License  Agreement exceed the lesser of (i) the aggregate  fees due or paid to COMPANY from Customer

at the time of such Party’s claim or (ii) the actual  damages sustained by such party, regardless of  whether any action or claim is based on  warranty, contract, tort or otherwise. Each party  hereby releases the other party from all  obligations, liability, claims or demand in excess  of this limitation. 

Neither COMPANY nor its licensors and  suppliers, nor Customer, shall be liable for any  special, indirect, incidental, or consequential  damages, including, but not limited to, any loss  of revenues, lost profits, loss of or inaccuracy of  data, or lost or interrupted business, however  caused and whether based in tort (including  negligence), contract, or any other theory of  liability, even if such entity has been advised of  the possibility of such damages. 

This limitation of liability shall apply to the  maximum extent permitted by law.

13. Customer’s Representations and Warranties

Customer represents and warrants that it has the  right to enter into this License Agreement, that  Customer is a corporation duly organized and  existing (and in good standing) under the laws of  the country or state of its incorporation and has  the power and authority (corporate or otherwise)  to execute and deliver this License Agreement. 

14. Title

Title, ownership rights, and any and all  intellectual property rights in and to the Licensed  Software shall remain in COMPANY and/or its  licensors and suppliers. The Licensed Software  is protected by copyright laws and international  copyright treaties. Title, ownership rights, and  intellectual property rights in and to the content  accessed through the Licensed Software is the  property of the applicable content owner and  may be protected by applicable copyright or  other law. This License Agreement gives  Customer no rights to such content. Except as  expressly provided herein, all right, title and  interest in and to the Licensed Software remains  with COMPANY and its licensors and suppliers.

15. U.S. Government-Restricted Rights

The Licensed Software is a “commercial item” as  that term is defined in 48 CFR 12.101 (Oct.  1995), consisting of “commercial computer  software” and “commercial computer software 

documentation” as such terms are used in 48  CFR 12.212 (Sept. 1995). Consistent with 48  CFR 12.212 and 48 CFR 227.7202-1 through  227.7202-4 (June 1995), all U.S. Government  End Users acquire the Software with only those  rights explicitly set forth herein.

16. Purchases in Canada

If the Licensed Software is purchased in  Canada, Customer agrees to the following: The  parties hereto confirm that it is their wish that this  license as well as any other documents relating  hereto, including notices, has been and shall be  written in the English Language (Les parties aux  présentes confirment leur volonté que cette  License de même que tous les documents y  compris et tout avis qui s’y rattache soient  redigés en langue anglaise). 

17. Press Releases and Other Promotions

COMPANY may reference Customer’s name  and the nature of the Services provided  hereunder in COMPANY business development  and marketing efforts, including without limitation  its web site.

18. Confidential Information

During the term of this License Agreement and  thereafter, each party will use and reproduce the  other party’s Confidential Information only for the  purposes of this Agreement and will restrict  disclosure of the other party’s Confidential  Information to its employees, Affiliates and  employees of Affiliates, with a need to know who  are under a binding obligation to comply with the  restrictions set forth in this Section 18 and will  not disclose the other party’s Confidential  Information to any third-party without the prior  written approval of the other party.  Notwithstanding the foregoing, it will not be a  breach of this License Agreement for either party  to disclose Confidential Information of the other  party if required to do so under law or in a  judicial or other governmental investigation or  proceeding, provided that the other party has  been given prior notice and the disclosing party  has sought all available safeguards against  widespread dissemination prior to such  disclosure. 

As used in this License Agreement, the term  “Confidential Information” refers to: (i) the prices  set forth in this License Agreement; (ii) each

party’s trade secrets, business plans, strategies,  methods and/or practices; (iii) any other  information relating to either party or its business  that is not generally known to the public,  including but not limited to information about  either party’s personnel, products, customers,  marketing strategies, services, pricing or future  business plans. Notwithstanding the foregoing,  the term “Confidential Information” specifically  excludes (A) information that is now in the public  domain or subsequently enters the public  domain by publication or otherwise through no  action or fault of the other party; (B) information  that is known to either party without restriction,  prior to receipt from the other party under this  License Agreement, from its own independent  sources as evidenced by such party’s written  records, and which was not acquired, directly or  indirectly, from the other party; (C) information  that either party receives from any third party  reasonably known by such receiving party to  have a legal right to transmit such information,  and not under any obligation to keep such  information confidential; and (D) information  independently developed by either party’s  employees or agents provided that either party  can show that those employees or agents had  no access to the Confidential Information  received hereunder. 

19. Term and Termination

19.1. Term

This License Agreement will become effective on  the Effective Date and will remain in effect until  terminated in accordance with the following  paragraph. 

19.2. Termination

Either party may terminate this License  Agreement forthwith if the other party materially  defaults under this License Agreement and fails  to cure such default within 45 days after receipt  of written notice of such default from the other  party. 

Either party may terminate this License  Agreement forthwith if the other party files a  petition for bankruptcy, or makes an assignment  for the benefit of the creditors, or a receiver is  appointed for the other party or its business.

19.3. Results of Termination

All Licenses granted herein shall become null  and void upon the termination of this License  Agreement. Following the termination of this  License Agreement, for whatever reason,  Customer shall return to COMPANY any and all  software program documentation or any other  materials, copies or reproductions of the  foregoing, relating to the Licensed Software, and  Upgrade(s), Update(s) and enhancements  thereto. Further, upon termination of this License  Agreement, both parties shall promptly, and in  any event within 30 days following termination,  return to the other party all other property and  Confidential Information belonging to the other,  in all forms partial and complete, in all types of  media and computer memory, and whether or  not merged with other materials, or to the extent  such return is not reasonably practical, will  destroy the foregoing and provide the originating  party with a certificate by an officer of the  company certifying destruction.

20. Force Majeure

Neither party shall be liable to the other for any  delay or non-performance of its obligations  hereunder in the event and to the extent that  such delay or non-performance is due to an  event of Force Majeure. 

Events of Force Majeure are events beyond the  control of the party which occur after the time of  signing of this License Agreement and which  were not reasonably foreseeable at the time of  signature of this License Agreement and whose  effects are not capable of being overcome  without unreasonable expense or loss of time to  the party concerned. Events of Force Majeure  shall include (without being limited to) war, acts  of government, natural disasters, fire and  explosions. 

21. Independent Contractors

Nothing in this License Agreement shall create,  evidence or imply any agency, partnership or  joint venture between the parties. Neither party  shall act or describe itself as the agent of the  other nor shall it represent that it has any  authority to make commitments on the other’s  behalf.

22. Severability

If any provision of this License Agreement is  declared by any judicial or other competent

authority to be void, voidable, illegal or otherwise  unenforceable then the remaining provisions of  this License Agreement shall continue in full  force and effect. The judicial or other competent  authority making such determination shall have  the power to limit, construe or reduce the  duration, scope, activity and/or area of such  provision, and/or delete specific words or  phrases as necessary to render such provision  enforceable.

23. Assignment

Either party shall have the right, at its own  discretion and at any given time during the Term  of this License Agreement, to assign the License  Agreement to an Succesor. COMPANY may  assign this License Agreement to any successor  of COMPANY. The Customer may assign this  License Agreement to any successor of the  Customer, provided, however, that the successor  is not a competitor of the business and affairs of  COMPANY. 

24. Counterparts

This License Agreement may be executed in  multiple counterparts, each of which shall be  deemed to be an original, but all of which  together shall constitute one and the same  instrument.

25. Notices

Except as may be otherwise provided herein, all  notices, requests, demands, waivers and other  communications made pursuant to this License  Agreement shall be in writing and shall be  conclusively deemed to have been duly given  upon receipt: (i) if delivered by hand or (ii) if 

delivered by DHL or similar internationally  recognized overnight courier or (iii) if delivered  by certified mail return receipt requested. 

Notices are to be sent to COMPANY to the  address at stated on top of the Order Form  Notices to the Customer are to be sent to the  address set out in the Order Form.

26. Choice of Law and Forum

This License Agreement, its interpretation,  performance or any breach thereof, will be  construed in accordance with, and all questions  with respect thereto will be determined by, the  laws of the country or State of COMPANY’s  incorporation. Both parties hereby irrevocably  submit any disputes under this License  Agreement to the jurisdiction of the courts  located in the country or State of COMPANY’s  incorporation.

27. Miscellaneous

This License Agreement represents the  complete agreement concerning the subject  matter hereof and supersedes all prior  agreements and representations between the  parties. 

This License Agreement may only be amended  in writing, executed by both parties. 

28. Survival

All terms of this License Agreement that by their  nature extend beyond its termination remain in  effect until fulfilled, and apply to respective  successors and assigns.