EULA India

ZEXTRAS CARBONIO END USER LICENSE AGREEMENT

This ZEXTRAS CARBONIO END USER LICENSE AGREEMENT ("EULA" or "Agreement") governs the use of the software product known as Zextras Carbonio, including all related updates and its components ("Software" or "Zextras Carbonio"), licensed by Zextras India Private Limited, with registered office at B-205, Bldg 42, B Wing, Azad Nagar Sangam CHS, MHADA Layout Azad Nagar, Andheri West, Mumbai City, Maharashtra 400053, India ("Licensor" or "Zextras"), to the entity or organization that has been granted a license to use the Software ("End User" or "You"). Zextras distributes, sells, licenses and sublicenses the Software and holds all rights necessary to grant the license set forth in this EULA. "Zextras", "ZEXTRAS", the Zextras name and logos, as well as "ZEXTRAS CARBONIO" and "Zextras Carbonio", are trademarks of the Zextras group. By installing, accessing, or using the Software, the End User agrees to be bound by the terms of this Agreement. If the End User does not agree to the terms of this Agreement, it must not install or use the Software.

1. DEFINITIONS

For the purposes of this EULA, the following capitalised terms shall have the meanings set forth below:

1. Affiliate: any entity that directly or indirectly controls, is controlled by, or is under common control with a Party.
2. Collected Data: technical information or other information collected by Zextras, including with automated means, about Your use of the Software, including but not limited to IP addresses, system configurations, and usage metrics.
3. Documentation: all manuals, instructions, specifications, technical materials, guides for users, guides for administrators and other documentation for the Software which is made generally available by Zextras as part of the Software, as updated by Zextras from time to time.
4. Infrastructure: a single environment comprising the systems, networks, and hardware under the End User's control where the Software is installed and operated.
5. License Key: a digital key issued by Zextras that activates the Software, permits its use under the terms of this EULA and defines the scope of the Software license.
6. Mailbox: an individual electronic mail account licensed for use under the terms of this EULA, excluding Distribution Lists, Aliases, External Accounts or Resource Accounts.
7. Metrics: the Collected Data transmitted by the Software to Zextras which is necessary to verify compliance with the scope of the license and, in the case of metered licenses, to calculate and measure Your usage of the Software.
8. Partner: any entity that has been authorised by Zextras, under a separate PARTNER AGREEMENT, to promote, distribute, license and sublicense the Software to End Users, directly or through authorised Resellers.
9. Reseller: any entity that has been expressly authorised by Zextras and by a Partner, under a separate RESELLER AGREEMENT, to distribute or otherwise provide the Software to End Users.
10. Software Maintenance: activities carried out by Zextras to deliver software updates for the Software. These updates, which are made available exclusively by or through Zextras, include, but are not limited to, vulnerability fixes and bug fixes, and are intended solely to align the Software with the latest available release or version. Software Maintenance does not include support or customization services. End Users who have duly acquired a valid license are entitled to receive Software Maintenance in accordance with the terms of the license.

2. LICENSE GRANT

1. Subject to the terms and conditions of this EULA, Zextras hereby grants to You, as the End User, a limited, non-exclusive, non-transferable license, without the right to sublicense, to use the Software solely for internal business purposes and exclusively within a single Infrastructure under Your direct control or operated on Your behalf by a contracted service provider. Such use is limited to You as a single legal entity, including Your Affiliates. This license extends to third parties operating under Your control who are contractually bound by obligations no less stringent than those contained herein and who access the Software solely for Your benefit. Any unauthorized use by third parties shall be deemed a breach of this EULA by You.
2. License on the Software to You is granted solely in connection with ordinary business operations. You acknowledge and agree that the Software is intended only for business use and has not been designed and tested for safety-critical or mission-critical applications. You acknowledge and agree that the Software is not licensed for military end-use, which includes: (a) the incorporation into military items whatsoever; or (b) the use of production, test or analytical equipment and components therefor, for the development, production or maintenance of military items; or (c) the use of any unfinished products in a plant for the production of military items.
3. The Software is made available to You under one of the license models set forth in Clause 3 below, as determined by Zextras from time to time. The license model applicable to You, together with its scope, is defined by the License Key and by the agreement pursuant to which the Software has been provided to You. You shall have no right to demand or assume entitlement to any particular license model.

3. LICENSE MODELS

3.A Subscription, Perpetual and Metered Licenses

1. The Software is licensed under one of the following commercial license models, the applicable one being defined by the License Key and by the agreement pursuant to which the Software has been provided to You:
   • Subscription License: the license is granted for the duration of the subscription and remains effective for as long as the subscription is valid and all applicable fees have been paid in full. Upon expiry or termination of the subscription, the license expires and the Software ceases to provide its functionalities.
   • Perpetual License: the license has no duration restriction and remains valid, for the version and release for which it has been granted, subject to Clause 10 below in respect of Software Maintenance.
   • Metered License: the license is granted for the limited period defined by the License Key and permits use of the Software commensurate with actual usage. Under a Metered License, the Metrics transmitted by the Software pursuant to Clause 6 serve not only to verify compliance with the scope of the license but also to measure such usage; accordingly, the continued transmission of the Metrics is a condition for the proper operation of the license, and any interruption of, or interference with, such transmission affects the operation of the Software and constitutes Improper Use for the purposes of Clause 7. The economic and billing terms applicable to the Metered License are governed exclusively by the agreement pursuant to which the Software has been provided and do not form part of this EULA.

3.B Not-for-Resale (NFR) Licenses

1. Zextras may grant to a Partner, and where expressly authorised to a Reseller, a Not-for-Resale license ("NFR License"), being a License Key issued solely to support non-production and non-commercial activities. Where the Software is provided to You under an NFR License, this Sub-clause 3.B shall apply and, in the event of any conflict with the remaining provisions of this EULA, shall prevail in respect of such NFR License.
2. An NFR License may be used solely for the following purposes: (a) internal testing and evaluation; (b) product familiarization; (c) demonstration activities; (d) technical validation; (e) training and certification preparation; and (f) internal lab and familiarization environments.
3. An NFR License shall not, under any circumstances, be used for: (a) production environments; (b) commercial hosting; (c) revenue-generating services; (d) live or production customer environments; (e) long-term customer deployments; or (f) managed-service production workloads, save where expressly approved in writing by Zextras.
4. An NFR License is strictly personal to the holder, non-transferable and non-sublicensable. It shall not be shared, transferred, resold or otherwise distributed outside the organization to which it has been issued, including to any customer, End User or unaffiliated Reseller. The holder remains fully accountable for the governance and proper internal use of the NFR License.
5. An NFR License is granted for a limited duration determined by Zextras and defined by the License Key; renewal is not automatic and remains subject to Zextras' prior assessment. The Software provided under an NFR License is licensed on an "AS IS" basis and, except as otherwise required by mandatory law, is provided without warranty of any kind. Zextras reserves the right to review usage of, and to suspend or revoke, any NFR License in the event of misuse or breach of this Sub-clause 3.B, in accordance with Clause 7 below.

3.C Software-as-a-Service (SaaS) Provision

1. Notwithstanding Sub-clause 2.1 and the prohibition set forth in Clause 5(c), the Software may be provided as a software-as-a-service ("SaaS") where, and only to the extent that, such provision has been expressly authorized in writing by Zextras. Where the Software is provided as a SaaS as authorized by Zextras, this Sub-clause 3.C shall apply and, in the event of any conflict with the remaining provisions of this EULA, shall prevail in respect of such SaaS provision. Absent such express authorization, any provision of the Software as a SaaS is prohibited and shall constitute a breach of this EULA.
2. Where the Software is provided as a SaaS, the entity operating the Software and providing the SaaS (the "SaaS Provider") shall be solely responsible for the operation, configuration, security and management of the Infrastructure on which the Software is operated, and for the provision of the service to the users thereof. The scope of the SaaS provision, together with the license model applicable to it, is defined by the License Key and by the agreement pursuant to which the Software has been provided to the SaaS Provider.
3. The obligation to ensure the transmission of the Metrics in accordance with Clause 6 rests, in respect of a SaaS provision, exclusively with the SaaS Provider, which shall ensure that the Infrastructure on which the Software is operated remains able to reach the systems designated by Zextras and shall not disable, obstruct or otherwise interfere with such transmission. Any interference with, or prevention of, the transmission of the Metrics shall constitute Improper Use for the purposes of Clause 7.
4. The relationship between the SaaS Provider and the end users of the SaaS, including the terms governing their access to and use of the service, shall be governed exclusively by the agreement between the SaaS Provider and such users, and does not form part of this EULA. The SaaS Provider shall remain fully responsible towards Zextras for any use of the Software made in connection with the SaaS provision, and shall ensure that such use at all times complies with the scope of the license and with the restrictions set forth in this EULA.

4. RESTRICTIONS

Except as expressly permitted by this EULA or as mandated by applicable law, You shall not: (a) modify, translate, convert, adapt, create derivative works based upon or derived from, duplicate, correct, enhance, maintain, update, rent, repackage, or remanufacture the Software or any part thereof, the License Key or any part thereof; (b) disassemble, reverse assemble, decompile, translate or convert into human-readable form or into another computer language, reconstruct or decrypt, reverse engineer, reverse compile, or otherwise attempt to derive source code from all or any part of the Software, or otherwise to discern the Software's internal architecture, structure or design, save where and to the extent such acts are permitted by mandatory applicable law, including for the purposes of achieving interoperability or of debugging the interface with a library licensed under the GNU Lesser General Public License or under similar copyleft terms included in the Software; (c) perform or facilitate any activity intended to circumvent or modify the technical limitations of the Software or to access features in a manner inconsistent with the license granted herein; or (d) disable, obstruct, alter or otherwise interfere with the transmission of the Metrics as set forth in Clause 6 below.

5. RESALE AND SERVICE PROVISION

Except as expressly authorized under a separate, valid PARTNER AGREEMENT or RESELLER AGREEMENT, or as permitted by applicable law, You shall not: (a) sell, sublicense, lease, assign, distribute, provide or otherwise transfer the Software to any third party; (b) operate the Software as a service bureau or otherwise host the Software for the benefit of third parties; (c) provide the Software as a software-as-a-service ("SaaS") unless expressly authorized by Zextras; or (d) install the Software in more than one Infrastructure under a single license, save for legitimate geographical backup purposes, provided the Software is not concurrently operational across installations.

6. DATA COLLECTION AND METRICS

1. You acknowledge and agree that Zextras may collect, process, store, and transmit Collected Data. Such Collected Data is used to ensure compliance with the scope of the license, to improve the performance and security of the Software, and to support provisioning. In the case of metered licenses, Collected Data is further used to calculate and measure Your usage of the Software.
2. You acknowledge and agree that the transmission of the Metrics is a technical requirement for the operation of the Software under this EULA. Accordingly, You shall ensure that the Infrastructure on which the Software is installed remains able to reach the systems designated by Zextras for the receipt of the Metrics, and shall not disable, obstruct or otherwise interfere with such transmission. Zextras shall make available the technical means by which the Metrics are transmitted, including, where applicable, arrangements suitable for environments with restricted connectivity, as described in the Documentation.

7. IMPROPER USE OF THE SOFTWARE

1. Zextras reserves the right to monitor compliance with this EULA through automated systems and Collected Data. The following shall constitute improper use ("Improper Use"): (a) circumvention of the licensing system; (b) unauthorized resale or distribution of License Keys; (c) exploitation of vulnerabilities to bypass limitations; (d) continued use of an outdated License Key after an upgrade; (e) use of an NFR License in breach of Sub-clause 3.B; and (f) disabling, obstructing or otherwise interfering with the transmission of the Metrics in breach of Clause 6.
2. In the case of proven Improper Use of the Software, any License Key involved will be temporarily invalidated, upon seven (7) days' notice, until the issue is clarified by You. In the event that the number of Mailboxes on Your server exceeds the number of Mailboxes licensed by Zextras, the related license is disabled, and access to Zextras functionalities and Software Maintenance is suspended until restored by Zextras. If a single license is installed in more than one Infrastructure, the license is disabled, and access to functionalities and Software Maintenance is suspended until rectified.

8. OWNERSHIP

Save as provided in Clause 9 in respect of Open Source Components, all right, title and interest in and to the Software, the License Keys and all related intellectual property rights are and shall remain vested in Zextras and/or its licensors. Zextras is duly authorised to grant the license set forth in this EULA. Zextras retains all rights not expressly granted to You in this EULA; accordingly, this EULA does not grant You any rights in or to the Software other than the limited license expressly set forth herein.

9. OPEN SOURCE AND THIRD-PARTY COMPONENTS

1. The Software may incorporate, be accompanied by, or be distributed together with software components licensed by third parties or by Zextras under free and open source software licenses, including copyleft licenses ("Open Source Components"). Open Source Components are licensed to You under the terms of their respective licenses and not under this EULA. Where any term of this EULA conflicts with the terms of the license governing an Open Source Component, the terms of such license shall prevail in respect of that component.
2. Nothing in this EULA, and in particular nothing in Clause 4 or Clause 8, shall limit, restrict or otherwise affect any right granted to You under the license governing an Open Source Component, including any right to use, study, modify, reproduce or distribute such component, or to obtain the corresponding source code thereof, including where such right arises by reason of interaction with the component over a network. Any modification right granted by such licenses may always be exercised by any recipient of the relevant component.
3. Where You exercise any right referred to in Sub-clause 9.2, Zextras shall have no warranty, Software Maintenance or support obligation whatsoever in respect of the Software as so modified, and all fees due under the agreement pursuant to which the Software has been provided to You shall remain due in full.
4. Software Maintenance under this EULA does not extend to Open Source Components as such, nor to any open-source or freely available version of Zextras Carbonio ("Zextras Carbonio Community Edition") or to any component or library thereof, regardless of its origin and whether or not used in conjunction with or integrated into the Software.

10. SOFTWARE MAINTENANCE

1. Except as expressly specified herein, Zextras does not provide any paid support or other services for the Software under this EULA.
2. The license granted to You includes Software Maintenance, as defined herein, subject to the following conditions:
   • in the case of perpetual licenses, Software Maintenance is included for a limited duration, provided that the corresponding fees have been duly paid in full. Upon expiry of the Software Maintenance period, You shall retain a perpetual, non-transferable right to use the licensed version of the Software as it existed at the time of expiry, but shall no longer be entitled to receive updates or Software Maintenance releases issued thereafter;
   • in the case of subscription licenses, Software Maintenance is included for the duration of the subscription, as long as it remains valid and all related fees are paid in full;
   • in the case of metered licenses, Software Maintenance is included for the limited period corresponding to the duration of the issued license, provided that usage is within the licensed scope, that the Metrics are duly transmitted in accordance with Clause 6, and that the applicable fees have been duly paid.

11. TERMINATION

Zextras may terminate this EULA immediately upon notice if You fail to comply with any term of this EULA. Upon termination, affected License Keys will be rendered invalid, the Software will be unusable, and You shall immediately cease use of the Software and destroy all copies in Your possession. Any obligations to pay fees incurred prior to termination of this EULA shall survive termination for any reason. Termination shall not limit any of Zextras' rights or remedies available at law.

12. WARRANTY, LIMITATION OF LIABILITY, SOLE REMEDY, INDEMNIFICATION

12.1 Limited Warranty. Zextras warrants that the Software will materially conform to the Documentation for ninety (90) days after delivery of the License Key. In the event of any breach of this warranty, where the Software does not substantially conform to the functional description set forth in the Documentation, Your sole and exclusive remedy shall be, at Zextras' option, for Zextras to: (a) modify the Software or correct the defects in the Software to enable it to operate in accordance with the warranty provided in this Clause 12; (b) replace the Software with software that operates in accordance with the warranty provided in this Clause 12; or (c) refund the license fees You paid, if any, for the Software, provided that: (i) the Software has been properly installed and used at all times and in accordance with the Documentation; (ii) no modification, deletion or addition has been made to the Software by persons other than Zextras or its authorized representative; and (iii) Zextras receives written notice of the non-conformity within the ninety (90) day warranty period.

12.2 Disclaimer. EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN SUB-CLAUSE 12.1, THE SOFTWARE IS PROVIDED BY ZEXTRAS AND ITS LICENSORS "AS IS". TO THE MAXIMUM EXTENT MANDATED BY LAW, ZEXTRAS AND ITS LICENSORS PROVIDE THE SOFTWARE WITHOUT ANY WARRANTIES WHATSOEVER OF EVERY KIND, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS EULA OR COMMUNICATION WITH YOU, AND ZEXTRAS AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, ZEXTRAS DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION OR WILL MEET YOUR REQUIREMENTS.

12.3 Limitation of Liability. TO THE MAXIMUM EXTENT MANDATED BY LAW, IN NO EVENT WILL ZEXTRAS AND ITS LICENSORS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU. ZEXTRAS' AND ITS LICENSORS' AGGREGATED LIABILITY UNDER THIS EULA WILL NOT, IN ANY EVENT, EXCEED THE LICENSE FEES YOU PAID FOR THE SOFTWARE, IF ANY. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER ZEXTRAS OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE REMEDIES PROVIDED IN THIS AGREEMENT ARE EXCLUSIVE, SHALL APPLY TO ALL CAUSES OF ACTION AND SHALL APPLY EVEN IF A PARTY SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

12.4 Indemnification. Zextras will, in the way set out below, and subject to all limitations therein, act on any action brought against You to the extent it is based on a claim that the Software infringes or violates any patent, copyright, trademark, trade secret or other intellectual property right of a third party, provided that Zextras is given prompt notice of such claim and is given information, reasonable assistance and sole authority to defend or settle the claim. Zextras may at its sole option obtain the right for You to continue using the infringing Software, replace or modify the infringing Software so that it becomes non-infringing, or, if such replacement or modification is not reasonably available, terminate the license with respect to the infringing Software and provide for a reasonable refund of fees paid by You for the Software so affected. Zextras shall not have any liability if the alleged infringement arises out of unauthorized use of the Software, post-delivery modifications not made by or on behalf of Zextras, or the combination with other products or devices not provided by Zextras. THE FOREGOING OBLIGATIONS CONSTITUTE ZEXTRAS' SOLE AND EXCLUSIVE OBLIGATIONS TOWARD YOU, AND YOUR SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY INTELLECTUAL PROPERTY CLAIM OR ACTION BROUGHT AGAINST YOU AS AFORESAID. FOR THE AVOIDANCE OF DOUBT, THE LIABILITY OF ZEXTRAS UNDER THIS CLAUSE MAY NEVER EXCEED THE LICENSE FEES YOU PAID FOR THE SOFTWARE, IF ANY, TO THE MAXIMUM EXTENT PERMITTED BY LAW.

13. SANCTIONED END USERS

1. You represent and ensure that neither You nor Your Affiliates (nor any person acting on Your behalf) is listed on any sanctioned list, located or organized in any country or territory subject to country- or territory-wide sanctions, or otherwise a subject of sanctions. Under this provision, "sanction" shall mean any economic or financial sanctions laws, regulations or trade embargoes or similar restrictive measures imposed, administered or enforced from time to time by the United Nations Security Council, the Government of India, the European Union or any of its member states, or any other competent authority. You acknowledge and agree that:
   • Zextras may, at its sole discretion, effective immediately and without notice, terminate this EULA, without any liability for Zextras, if You are found, irrespective of the date of the sanction, to be listed on any sanctioned list, located or organized in any country or territory subject to country- or territory-wide sanctions, or otherwise a subject of sanctions;
   • You shall promptly notify Zextras if You become aware that You are listed on any sanctioned list, located or organized in any country or territory subject to country- or territory-wide sanctions, or otherwise a subject of sanctions.

14. SEVERABILITY

If any provision of this EULA is held to be unenforceable or invalid, such provision shall be enforced to the maximum extent permissible, and the remaining provisions shall remain in full force and effect.

15. WAIVER

Failure or delay by Zextras to exercise any right or remedy under this EULA shall not operate as a waiver of such right or remedy.

16. GOVERNING LAW, JURISDICTION

This EULA shall be governed and construed in all respects by and in accordance with the laws of India, without regard to the conflict-of-laws principles that would require the application of any other law. Any dispute arising out of or in connection with this EULA shall be subject to the exclusive jurisdiction of the competent courts at Mumbai, Maharashtra, India. However, Zextras shall have the right, at its sole option, to seek remedies before a court having jurisdiction based on the place where the defendant is domiciled or has its main place of business.