Unless there is a separate signed Terms in physical form between the parties the click wrap Terms shall apply and control.

1. License. DataNimbus and its licensors hereby grant the Licensee a non-exclusive license to use the DataNimbus Software set forth in the applicable Order Form at Licensee’s premises, solely for Licensee’s own internal operations and for processing its own data. No right to use, copy, duplicate or display the DataNimbus Software is granted, except as expressly provided herein.

2. Limits. Licensee agrees not to (directly or indirectly, and in whole or in part): (a) make more copies of DataNimbus Software than specified in the Order Form; (b) provide access to DataNimbus Software to anyone other than Licensee’s employees, contractors, or consultants under written contract with Licensee agreeing to be bound by terms at least as protective of DataNimbus as those in this Agreement (“Authorized Users”); (c) sublicense, distribute, pledge, lease, rent, or commercially share (including timeshare) or otherwise commercially exploit DataNimbus Software or any of Licensee’s rights herein; (d) use DataNimbus Software in connection with any ultra hazardous activity, or any other activity which might result in property damage, or death or bodily injury; or (e) modify, translate, reverse engineer, decrypt, decompile, disassemble, create derivative works based on, or otherwise attempt to discover DataNimbus Software source code or underlying ideas or algorithms. Usage of the software in production by the Licensee is limited to the subscription availed of by the Licensee as part of the executed Order Form.

3. Fees. Licensee shall pay the license fees and related charges for DataNimbus Software set forth in the Order Form. Unless otherwise stated, all payments shall be made in US Dollars, within 30 days from the date of DataNimbus’s invoice. An interest of one and one-half percent per month will be applied to all invoices that are not paid on time. Licensee agrees to pay all sales, use, value-added, goods and services, consumption, withholding, excise and any other similar taxes or government charges, exclusive of DataNimbus’s income taxes. DataNimbus may terminate this Agreement if Licensee has not paid any fees due within 15 (fifteen) days after written notice of such non-payment. Except as set forth in the sections entitled “Limited Warranties” and “Indemnity”, all fees paid under or in connection with this Agreement are non-refundable and no right of set-off exists. DataNimbus Software shall be delivered electronically and such delivery shall be deemed complete when DataNimbus Software is made available for download by the Licensee.

4. Limited Warranties. DataNimbus warrants that: (a) for 30 (thirty) days following initial delivery of DataNimbus Software to Licensee, the unmodified DataNimbus Software, under normal use on the Platform for which it is intended, will perform all material functions described in its Documentation, and (b) that DataNimbus has the right to grant the licenses and other rights set forth herein. If a defect is reported to DataNimbus during such a thirty-day period, DataNimbus may repair or replace DataNimbus software to rectify or avoid such defect or provide Licensee a full refund for the module of the DataNimbus Software concerned. In the event of a refund, the license grant set forth in this Agreement shall terminate immediately upon refund with respect to all copies of DataNimbus Software involved. DataNimbus shall resolve claims related to (b) in the manner provided in the Section entitled “Indemnity”. The foregoing shall be Licensee’s sole and exclusive remedies and the entire liability of DataNimbus and its licensors for any breach of these limited warranties. 

NO DataNimbus AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS OR ADDITIONS TO THESE LIMITED WARRANTIES. EXCEPT AS PROVIDED ABOVE, DataNimbus SOFTWARE AND SERVICES ARE PROVIDED “AS IS”, AND ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF INFORMED OF SUCH PURPOSE), INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW.

CERTAIN THIRD PARTY SOFTWARE MAY BE PROVIDED TO LICENSEE ALONG WITH CERTAIN DataNimbus SOFTWARE AS AN ACCOMMODATION TO LICENSEE. SUCH THIRD PARTY SOFTWARE IS PROVIDED “AS IS”. LICENSEE MAY CHOOSE NOT TO USE THIRD PARTY SOFTWARE PROVIDED AS AN ACCOMMODATION BY DataNimbus. NO WARRANTY IS MADE THAT DataNimbus SOFTWARE’S FUNCTIONALITY OR SERVICES WILL MEET LICENSEE’S REQUIREMENTS, OR THAT THE OPERATION OF THE DataNimbus SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

5. Indemnity. DataNimbus agrees, at its own expense, to defend or, at its option, to settle, any claim or action brought against Licensee to the extent it is based on a claim that the unmodified DataNimbus Software, licensed and used in accordance with this Agreement, infringes any patent issued by the Indian patent office, or any copyright, or misappropriate any trade secret of a third party, and DataNimbus will indemnify and hold Licensee harmless from and against any damages, costs and fees reasonably incurred (including reasonable attorney’S fees) that are attributable solely to such claim or action and which are assessed against Licensee in a final judgment; provided that DataNimbus is promptly notified in writing of such claim, DataNimbus has the exclusive right to control such defense and/or settlement, and Licensee shall provide reasonable assistance (at DataNimbus’s expense) in the defense thereof. In no event shall Licensee settle any claim, action or proceeding without DataNimbus’s prior written approval. In the event of any such claim, litigation or threat thereof, DataNimbus, at its sole option and expense, may (a) procure for Licensee the right to continue to use DataNimbus Software or (b) replace or modify DataNimbus Software with functionally equivalent software. If such settlement or modification is not commercially reasonable (in the opinion of DataNimbus), DataNimbus may cancel this Agreement upon (30) thirty days prior written notice to Licensee, and refund to Licensee the unamortized portion of the subscription fees paid to DataNimbus by Licensee, This Section states the entire liability of DataNimbus with respect to the infringement of any Intellectual Property rights, and Licensee hereby expressly waives any other liabilities or obligations of DataNimbus with respect thereto. The foregoing indemnity shall not apply to the extent any infringement could have been avoided by use of the then-current release. The Licensee agrees to indemnify and hold harmless DataNimbus, its directors, officers, employees and personnel from and against all losses, claims, demands, taxes, liabilities, obligations, fines,
expenses, damages, interest, penalties, claims made by third parties, attorneys’ and accountants’ fees which DataNimbus may incur or suffer or put to by reason of (i) breach of any of the terms of this Agreement by the Licensee, its directors, employees and personnel. The indemnification rights of DataNimbus under this Agreement are independent of, and in addition to, such other rights and remedies as DataNimbus may have at law or in equity or otherwise, including the right to seek specific performance, rescission, restitution or other injunctive relief, none of which rights or remedies shall be affected or diminished thereby.

6. Limitation of Liability. Notwithstanding anything to the contrary contained in this Agreement or otherwise, (i) in no event will DataNimbus’s or DataNimbus licensors be liable for any lost data, lost revenue, lost profits, damage to reputation, business interruption, or any indirect, incidental, consequential, special, punitive, exemplary or any similar type of damages arising out of or in any way related to this agreement, the use or the inability to use the software, or the provision of any services, even if advised of the possibility of such damages, (ii) in no event shall DataNimbus’s liability exceed the outstanding license fees, the Licensee is obligated to pay DataNimbus under this Agreement. The Licensee liability under this Agreement shall remain unlimited.

7. Confidentiality. “Confidential Information” means the terms of this Agreement; all information marked by the disclosing party as proprietary or confidential; any provided software, related documentation or related performance test results derived by Licensee; and any methods, concepts or processes utilized in provided software or related documentation. Confidential Information shall remain the sole property of the disclosing party and shall not be disclosed to any non-Authorized User without the prior written consent of the disclosing party. The parties agree to protect the Confidential Information of the other in the same manner it protects the confidentiality of similar information and data of its own (and at all times exercising at least a reasonable degree of care). Except with respect to DataNimbus Software, items will not be deemed Confidential Information if (i) available to the publicother than by a breach of an agreement with DataNimbus, (ii) rightfully received from a third party notin breach of any obligation of confidentiality, (iii) independently developed by one party without use ofthe Confidential Information of the other; (iv) known to the recipient at the time of disclosure (otherthan under a separate confidentiality obligation); or (v) produced in compliance with applicable law orcourt order, provided the other party is given reasonable notice of the same and provided with an opportunity to seek appropriate protective or other orders from the court.

8. Export. DataNimbus Software, Documentation and related technical data, are subject to U.S. export control laws, including without limitation the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries including India. Licensee hereby assures DataNimbus that it shall comply with all such regulations and agrees to obtain all necessary licenses to export, re-export, or import DataNimbus Software.

9. Title/Proprietary Notices. DataNimbus Software is proprietary to DataNimbus and/or its licensors and is protected by applicable patent, copyright, trademark and trade secret laws (“Intellectual Property”). DataNimbus and its licensors shall retain title to DataNimbus Software and all Intellectual Property (and any other rights) embodied therein. All proprietary notices incorporated in or affixed to any DataNimbus Software or Documentation shall be duplicated by Licensee on all copies of DataNimbus Software or Documentation, as applicable, and shall not be altered, removed or obliterated.

10. Orders. An Ordering Document shall be deemed accepted only by issuance of a DataNimbus invoice and solely for purposes of administrative convenience. None of the terms of the Ordering Document (other than the software product name, level of maintenance and description of Services, and fees due in connection therewith), shall apply for any reason or purpose whatsoever, regardless of any statement on any Ordering Document to the contrary, unless it expressly states it is modifying this Agreement and is countersigned by an officer of DataNimbus. All orders for DataNimbus Software and Services by Licensee from DataNimbus in the form of or which are accompanied by an Ordering Document shall be deemed to occur under the terms of this Agreement (with or without reference to this Agreement), unless superseded by a written Agreement signed by both parties, which expressly states otherwise.

11. General. This Agreement, together with the Click-wrap terms on any component of the DataNimbus Software, constitutes the complete and exclusive statement of the parties’ agreement as relates to the subject matter hereof and supersedes all proposals, representations, statements, negotiations and undertakings relating to the same. To the extent of any conflict between this Agreement and the Click-wrap terms, this Agreement shall control. This Agreement may not be modified or altered except by a written instrument duly executed by both parties, expressly stating that it modifies this Agreement. Neither the license to use the DataNimbus Software granted in this Agreement nor the obligation to pay the license fees set forth above are dependent upon the performance by any party of any Consulting Services or the supply of any other software program or product. No waiver by either party of any breach of any provision of this Agreement shall be construed as a waiver of that or any other provision on any other occasion. Except for an assignment, in whole or part, by DataNimbus to a third party that acquires an interest in DataNimbus or in which DataNimbus acquires an interest or with which DataNimbus engages in a joint venture or collaboration or other teaming or like arrangement, neither party may assign this Agreement and/or any of its rights and/or obligations hereunder without the prior written consent of the other party (not to be unreasonably withheld) and any such attempted assignment shall be void. For the purposes of the foregoing, a change in control of Licensee is deemed to be an assignment and shall require DataNimbus’s prior written consent. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby, and the parties shall substitute for the affected portion an enforceable provision which closest approximates the intent and the economic effect thereof. Upon termination or other expiration of this Agreement, each party shall promptly return to the other all papers, materials and property of the other. Sections entitled “Fees”, “Limited Warranties”, “Limitation of Liability”, “Indemnity”, “Confidentiality”, and “General”, shall survive the expiration or earlier termination of this Agreement. All notices related to this Agreement shall be in writing in English and delivered by nationally recognized courier service to the address specified in this Agreement, with notices of default, breach or termination also being sent to that party’s registered office address (attn: Legal Department). This Agreement may be executed in counterparts. Licensee agrees to pay allreasonable costs (including reasonable attorneys’ fees) incurred in collecting past due amounts underthis Agreement. Licensee hereby grants DataNimbus and its independent auditors the right to auditLicensee’s compliance with this Agreement upon reasonable notice and at reasonable times. ThisAgreement shall be governed by and construed in accordance with the laws of the State of Texas andsubject to the exclusive jurisdiction of Federal Court for the Northern District Court of Texas, withoutgiving effect to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement. Throughout this document, the terms “Terms” and “Agreement” are used interchangeably.

12. Definitions. “Documentation” means text material that accompanies DataNimbus Software on delivery; “Ordering Document” means any purchase order or similar document or agreement requesting DataNimbus Software or Services; “Platform” means the operating system, hardware or environment set forth in this Agreement or an Ordering Document for each DataNimbus Software product; “Services” means any services performed in connection with this Agreement, including, without limitation, Maintenance and Consulting Services as set forth in this Agreement; “Third Party Software” means third-party software identified by its company and/or product name, the provision of which by DataNimbus is made solely as an accommodation and in lieu of Licensee purchasing a license to Third Party Software directly from the third party vendor; “DataNimbus” means the DataNimbus entity signing this Agreement; “DataNimbus Software” means the most current generally available object code version (as of the Effective Date) of the software products listed in the Order Form of this Agreement and any subsequent Ordering Document, including its Documentation.

13. Maintenance. While under active subscription, Authorized Contacts (changeable upon 48 hours prior written notice and which may be registered at DataNimbus’s support website; may notify DataNimbus’s technical assistance center of an error, defect, or malfunction in DataNimbus Software. DataNimbus will use commercially reasonable efforts to resolve the matter according to problem severity (“Maintenance”). Licensee agrees to pay reasonable expenses, materials, freight, travel and any other costs mutually agreed upon in connection with the provision of Maintenance. In the event that a request for Maintenance reveals that the cause of the problem is not an error, defect or malfunction in the unmodified DataNimbus Software, Licensee shall pay DataNimbus for its work on a time & material basis, plus expenses. Maintenance fees for the reinstatement of lapsed Maintenanceor the changing of the level of Licensee’s Maintenance shall be mutually agreed between Licensee and DataNimbus. Maintenance will only be provided on the supported versions of the product. DataNimbus will communicate planned releases and end of life support timelines with reasonable notice to the licensee.