End User License Agreement
This End-User License Agreement ("Agreement") governs the terms and conditions upon which Licensee has obtained a license regarding the Finesse Application/Software through a Finesse Customized Solutions Pvt. Ltd. Partner or Finesse Customized Solutions Pvt. Ltd. directly, as the case may be. Finesse Customized Solutions Pvt. Ltd. and Licensee shall herein referred to each as a "Party" and collectively as the "Parties".
All capitalized terms used in this Agreement that are not otherwise defined herein, shall have the meaning shown below, for both singular and plural forms. Unless otherwise specified, any reference in this Agreement to a section or other subdivision is a reference to a section or subdivision of this Agreement.
1. Definitions
1. "Affiliates"
means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a Party. For purposes of this definition "control" means the direct possession of a majority of the outstanding voting securities of an entity.
2. "App" or "Application"
means Licensee's Application Model as deployed on and interpreted by the Mendix Platform in order to make it a functioning application ready to process Licensee Data.
3. "Application Model"
means the visual model of Licensee's application, which visual model has been created by Licensee or by a third party per Licensee's instructions and requirements, making use of the Mendix Platform.
4. "Claim"
has the meaning given to it in section 8.1 (Finesse Customized Solutions Pvt. Ltd. Indemnification).
5. "Confidential Information"
has the meaning given to it in section 3.1 (Confidential Information).
6. "Documentation"
means the documentation provided by Finesse Customized Solutions Pvt. Ltd. to assist users in the use of the Finesse Application/Software describing the operational functionality of (elements of) the Finesse Application/Software, including user and system administrator guides and manuals, found in the Finesse Application/Software.
7. "DPA"
has the meaning given to it in section 7.5 (Data Protection).
8. "End-of-Life-Date"
has the meaning given to it in section 2.7 (End-of-Life-Date).
9. "Feedback"
means any suggestions, enhancement requests, recommendations, corrections or other feedback provided by Customer, its Affiliates, and/or Users relating to the features or operation of the Finesse Application/Software and Documentation or services.
10. "Incident"
has the meaning given to it in section 7.8 (Incident Management and Breach Notification).
11. "Licensee Data"
means any electronic information, including but not limited to, any data, information or material, such as posts, comments, documents, project information, application data, user information and account information which is submitted, created, saved, added, uploaded or made available in the Application. For the avoidance of doubt, the Application Model is not part of Licensee Data.
12. "Finesse Customized Solutions Pvt. Ltd."
is a private limited liability companies under Indian law with the name Finesse Customized Solutions Pvt. Ltd. and/or any affiliated or subsidiary company.
13. "Finesse Application/Software"
means all software and services provided by Finesse Customized Solutions Pvt. Ltd. whether such software and services are provided physically at Licensee's location, through the internet or installed on Licensee's hardware, including but not limited to, the Finesse Customized Solutions Pvt. Ltd. website(s) and Documentation.
14. Private Finesse Customized Solutions Pvt. Ltd. Programming Interface ("Private API")
is any API that is not explicitly published by Finesse Customized Solutions Pvt. Ltd. as a public API.
15. "Mendix Platform"
means all software and services provided by Mendix (www.mendix.com) whether such software and services are provided physically at Licensee's location, through the internet or installed on Licensee's hardware, including but not limited to, the Mendix website(s), (Web / Desktop) Modeler, Team Server, Platform Portal (Cloud Portal and Developer Portal), Market Place, Support Portal, Partner Portal, Mendix Cloud, Mendix Runtime, Mendix Community, Mendix Forum, Sandbox, Platform-as-a-Service, and Documentation.
16. "Legal Notices"
has the meaning given to it in section 9.7 (Notices).
17. "Losses"
has the meaning given to it in section 8 (Indemnification).
18. "Order Document"
means an ordering document provided by a Finesse Customized Solutions Pvt. Ltd. Partner and signed by Licensee, which details, amongst other things, the subscription or other services to be provided by Finesse Customized Solutions Pvt. Ltd., the applicable usage limitations and the price payable by Licensee for the Finesse Application/Software and related services, and the term for which the Finesse Application/Software and any related services are provided.
19. "Representatives"
has the meaning given to it in section 3.1 (Confidential Information).
20. "Security Breach"
has the meaning given to it in section 7.8 (Incident Management and Breach Notification).
21. "Service Level Agreement"
is the Finesse Solution Service Level Agreement 2024-1 that has been agreed to by the Parties.
22. "Subscription Term"
means the term for the recurring/ongoing services, such as subscription items, as set forth in the relevant Order Document.
23. "Update"
means a modification made by Finesse Customized Solutions Pvt. Ltd. to the Finesse Application/Software and provided to Licensee under the terms and conditions of this Agreement. Updates shall not include any version, option or future products provided by Finesse Customized Solutions Pvt. Ltd. not included in the subscription as set forth in the relevant Order Document.
24. "Upgrade"
means a new, major software release of the Finesse Application/Software whose primary purpose is to add new functionality or enhance the performance of the Finesse Application/Software, which is identified by an increment in the first two (2) numbers of the software version. Notwithstanding the foregoing, an Upgrade will not include new software or modules (whether or not branded as Finesse Customized Solutions Pvt. Ltd. software) that Finesse Customized Solutions Pvt. Ltd. markets and prices separately.
25. "Users"
means individuals who are authorized by Licensee to use the Finesse Application/Software and have been supplied passwords by Licensee (or by Finesse Customized Solutions Pvt. Ltd. at Licensee's request). Users consist of any employee of Licensee or its Affiliates and any independent contractor of Licensee or its Affiliates.
2. License Grant and Services
2.1 Service Provision
Finesse Customized Solutions Pvt. Ltd. shall (a) provide Licensee with (access to) the Finesse Application/Software and related services, specified on an Order Document, pursuant to this Agreement, and (b) use commercially reasonable efforts to make the Finesse Application/Software available 24 hours a day, 7 days a week, save for: (i) planned downtime (of which Finesse Customized Solutions Pvt. Ltd. will give advance electronic notice as provided in the Documentation and/or applicable Service Level Agreement); and (ii) any unavailability caused by circumstances beyond the reasonable control of Finesse Customized Solutions Pvt. Ltd. as set forth in section 9.10 (Force Majeure).
2.2 License Terms
Subject to the terms and conditions of this Agreement, and in consideration for the payment of the subscription fees set forth on the applicable Order Document, Finesse Customized Solutions Pvt. Ltd. hereby grants to Licensee and its Affiliates, solely during the Subscription Term of the applicable Order Document, a non-exclusive, non-transferable (except as set forth in section 9.4 (Assignment)) license to access and use the Finesse Application/Software solely for Licensee's internal business purposes.
2.3 License Restrictions
This license is restricted to use by Licensee and its Affiliates, and its Users and does not include the right to use the Finesse Application/Software on behalf of any third party. Furthermore, this license is subject to the limitations set forth on the applicable Order Document, including but not limited to: instances, users, storage, memory, time or other designated metric.
3. Restrictions and Obligations
3.1 Prohibited Uses
Notwithstanding anything set forth in this Agreement to the contrary, Licensee may not:
- License, sublicense, sell, resell, rent, lease, transfer, assign, distribute its rights to any other person or otherwise commercially exploit the Finesse Application/Software
- Make the Finesse Application/Software available to anyone who is not a User
- Create any derivative works based upon the Finesse Application/Software or Documentation other than an Application Model
- Copy any feature, design or graphic, or reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure
- Access or let anyone access the Finesse Application/Software to build a competitive solution
- Send spam or otherwise duplicative or unsolicited messages in violation of applicable laws
- Transmit unlawful, infringing, tortious, obscene, threatening, abusive, harassing, defamatory, vulgar, libelous content
- Interfere with or disrupt the integrity or performance of the Finesse Application/Software
- Upload or transmit any material that contains software viruses or malicious code
- Use the Finesse Application/Software in a way that violates any criminal, public or civil law
- Call a Finesse Customized Solutions Pvt. Ltd. "Private API" from other systems than Finesse Application/Software
4. Confidentiality
4.1 Confidential Information
Either party may, from time to time, deliver to the other certain non-public information including formulas, flow charts, diagnostic routines, business information, forecasts, financial plans and data, balance sheet information, customer information, marketing plans, hardware, software and unannounced product information ("Confidential Information").
4.2 Confidentiality Obligations
During the term of this Agreement and following three (3) years after its termination, each Party will not disclose any such Confidential Information except as set forth herein. The receiving Party shall hold in confidence, and shall not disclose any Confidential Information to any person or entity except to Representatives who have a need to know such Confidential Information and who are bound by a duty of confidentiality.
5. Warranties and Disclaimers
5.1 Mutual Warranties
Each Party represents and warrants that: (i) it has the legal power to enter into and perform under this Agreement; and (ii) it will comply with all laws and regulations in the performance of this Agreement.
5.2 Finesse Warranties
Finesse Customized Solutions Pvt. Ltd. warrants that: (i) Finesse Application/Software will function substantially as described in the Documentation; and (ii) Finesse Customized Solutions Pvt. Ltd. owns or otherwise has secured the right to provide Finesse Application/Software to Licensee and its Affiliates under this Agreement.
Important Disclaimer
FINESSE CUSTOMIZED SOLUTIONS PVT. LTD. DOES NOT REPRESENT THAT THE FINESSE APPLICATION/SOFTWARE WILL BE ERROR-FREE, OR THAT IT WILL MEET LICENSEE'S REQUIREMENTS. THE WARRANTIES STATED ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY FINESSE CUSTOMIZED SOLUTIONS PVT. LTD., THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
6. Limitation of Liability
Liability Limitations
General Limitation: FINESSE CUSTOMIZED SOLUTIONS PVT. LTD. SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, UNLESS THE LICENSEE CAN PROVE THAT THE DAMAGES HAS BEEN CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF FINESSE CUSTOMIZED SOLUTIONS PVT. LTD.
Exclusion of Damages: FINESSE CUSTOMIZED SOLUTIONS PVT. LTD. WILL NOT BE LIABLE FOR LOSS OF PROFITS OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES.
Cap on Liability: EACH PARTY'S TOTAL LIABILITY SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE BY LICENSEE DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT(S) GIVING RISE TO SUCH LOSS.
7. Term and Termination
7.1 Term
This Agreement will commence on the date Licensee has duly executed and returned this Agreement to Finesse Customized Solutions Pvt. Ltd., and will continue in effect until otherwise terminated. The Subscription Term shall automatically renew for additional terms of one (1) year each unless either Party notifies the other Party in writing at least sixty (60) days prior to the then current expiration date.
7.2 Termination for Breach
Either Party may terminate this Agreement immediately in the event of a material breach that is not cured within thirty (30) days of written notice, or if the other Party ceases doing business or is the subject of a bankruptcy or insolvency proceeding.
8. Ownership and Data Rights
8.1 Finesse IP Rights
Licensee acknowledges that all right, title and interest in and to the Finesse Application/Software and Documentation, including all modifications and configurations, are and shall remain Finesse Customized Solutions Pvt. Ltd.'s or its licensors'.
8.2 Licensee Data Rights
Licensee retains ownership of all right, title and interest in and to all Licensee Data and the Application Model. Finesse Customized Solutions Pvt. Ltd. shall not modify or add to the Licensee Data and shall not make any claim for any right of ownership in the Licensee Data.
9. Data Protection and Security
9.1 Compliance with Data Protection Laws
Each Party warrants that it shall comply at all times with its obligations under data protection laws and regulations applicable to the Parties, including but not limited to the EU GDPR, US federal privacy laws, and the South African Protection of Personal Information Act 2013 (POPI).
9.2 Data Processing Roles
Licensee is and shall remain the data controller of the Licensee Data, and Finesse Customized Solutions Pvt. Ltd. is a service provider that is and shall remain the data processor of the same, as defined in applicable data protection laws.
9.3 Security Breach Notification
Finesse Customized Solutions Pvt. Ltd. will inform Licensee within 72 hours if it determines that Licensee Data has been subject to a Security Breach or any other circumstance in which Licensee is required to provide a notification under applicable law.
10. Indemnification
10.1 Licensee Indemnification
Licensee will indemnify, defend and hold Finesse Customized Solutions Pvt. Ltd. harmless from any Claims arising out of:
- Allegations that the Licensee Data infringes intellectual property rights or proprietary rights of others
- Licensee's breach of the access provisions or violation of applicable laws
11. General Provisions
11.1 Governing Law and Jurisdiction
| If Licensee is domiciled in: | Licensee is contracting with: | Notices should be addressed to: | The governing law is: | The court that has exclusive jurisdiction: |
|---|---|---|---|---|
| Any country | Finesse Customized Solutions Pvt. Ltd. | 19-2-51/5/1/E, 5th Floor, Akber Bagh, Malakpet, Hyderabad, T.S. India - 500036 | Indian law | Hyderabad High Court |
11.2 Entire Agreement
This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications between the Parties relating thereto.
11.3 Contact Information
If you have questions regarding this Agreement or wish to obtain additional information, please contact us via https://finesse-cs.tech/contact