This is a Battery Software end user license agreement (“EULA”) between You and Exponent Energy Private Limited, “Licensor”) in relation to the licensing of the software that runs on the Battery Management System (hereinafter referred to as the “Licensed Application”) to You. You agree to be bound by the terms and conditions set forth in this EULA. If You do not agree to the terms and conditions set forth in this EULA, then You should not use the Licensed Application. By using the Licensed Application and/or the corresponding e^pack (defined below) and/or the corresponding e^pack enabled vehicle, you shall be deemed to have read, understood and accepted to be bound by this EULA.
1. Limited License to use the Licensed Application: Subject to payment of applicable fees (if any) by You, the Licensor grants You a royalty-free, non-exclusive, limited, non-transferable, revocable, and non-sublicensable license to use the Licensed Application for accessing the Data (defined below) generated from the Licensed Application, in accordance with the terms of this EULA. It is clarified that in the event the e^pack or e^pack enabled vehicle is sold/leased out by You to any end-user, then such end-user to whom the e^pack or e^pack enabled vehicle has been sold/leased out to, shall be bound by the terms of this EULA. It is further clarified that You will be solely responsible to ensure that such end-user is made aware of the existence and exact terms of this EULA.
2. Limitations: You shall not access, copy, distribute, reverse engineer, reproduce, decompile, disassemble, discover, modify, or create derivative works of the source code, object code, or underlying design/structure, ideas or algorithms of the Licensed Application, whether in whole or in part, including any corrections, enhancements, updates, modifications, customizations, versions, or translations thereto. Except as expressly permitted under this EULA, you cannot distribute the Licensed Application or otherwise use it for commercial use.
3. Restrictions on the use of the Licensed Application:
3.1. You shall not, and shall not permit any third party to, access, distribute, time-share, lend, loan or use the Licensed Application, except as expressly permitted by this EULA.
3.2. You shall not sell, rent, lease, copy, transfer, or assign any part of the Licensed Application to any third-party.
3.3. You shall not use the Licensed Application in order to build a competitive battery or product.
3.4. You shall not copy, download or republish any part of the Licensed Application in any form or by any means, except as expressly stated herein.
3.5. You shall not use, or encourage, promote, facilitate or instruct other end-users to use, the Licensed Application for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, or offensive.
3.6. You agree not to use the Licensed Application in order to: (i) upload or distribute any computer viruses, worms, malicious code, or any software intended to damage or alter a system or a device or data; or (ii) disable, overly burden, impair, or otherwise interfere with servers or networks connected to the Licensed Application.
3.7. You shall not sell or sub-license any Data (defined below) generated from the Licensed Application.
3.8. You shall not impact or attempt to impact the efficiency of the Licensed Application in any form or method, including the addition or insertion of any hardware to the corresponding e^pack(s) (defined below).
3.9. You shall not circumvent any copyright protection technology that may be included in the Licensed Application, including features that automatically disable or limit the use of the Licensed Application upon expiration of the license.
4. Data Sharing:
4.1. You agree and acknowledge that the Licensed Application will generate data from the e^pack ("Data”). For the purposes of this EULA, “e^pack(s)” refer to those batteries developed by Exponent, that are either (a) sold to You, or (b) form a part of the e^pack enabled vehicles which are sold/leased out to You.
4.2. Exponent shall unconditionally own all the Data and other information (if any) generated from the Licensed Application, in and to the e^pack. You shall only be permitted to use the Data generated from the Licensed Application that is necessary for using the e^pack enabled vehicle and/or the e^pack.
5. Data provided on the Licensed Application: You represent and warrant that (a) you are authorized to use the Licensed Application and such generated Data, (b) You are not prohibited to use the Licensed Application by virtue of any contract, agreement, arrangement, understanding, covenant, order, judgment or decree to which or by which You a rebound, (c) You are solely responsible to ensure that your use of the Licensed Application does not violate any applicable central, state, local, or other law, and (d) You are solely responsible to ensure that all applicable laws in relation to the collection, usage, processing and disclosure of such Data has been complied with.
6. Use of Data: You are advised to use the Licensed Application only from a secure environment. Any generated Data from the Licensed Application, if shared by You, shall be at your risk.
7. Intellectual Property Rights:
7.1. All copyright, trademark, patent, design, technical know-how and other intellectual property rights to the Licensed Application, including corrections, enhancements, updates, modifications, customizations, versions, translations orany derivatives thereto, are the sole and absolute property of the Licensor. Your usage of the Licensed Application does not transfer any rights to the Licensed Application, except for the limited license to use the same for accessing Data.
7.2. The Licensor reserves all rights, title and interest in and to the Licensed Application and any of its solutions, analytical applications and/or products.
7.3. The Licensed Application, including, but not limited to its text, graphics, logos, along with the button icons, images, scripts and service names (if any) constitute trademarks/trade dress of the Licensor. The trademarks and trade dress of the Licensor shall not be used in connection with any product or service that is not affiliated with the Licensor or in any manner that is likely to cause confusion among end-users or potential users or dilute the rights of or disparage or discredit the Licensor.
7.4. The Licensor shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Licensed Application any improvements, suggestions, enhancement requests, recommendations or other feedback provided by You relating to the Licensed Application.
8. Limitation and Disclaimer of Warranty:
8.1. You agree and acknowledge that You assume full responsibility for your use of the Licensed Application.
8.2. The Licensed Application is being provided on an “as-is” basis without warranty of any kind, either express or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose.
8.3. Recognizing the risks outlined herein, both parties understand and agree that, to the fullest extent permitted by applicable law, neither party or its affiliates or their respective employees, partners, directors, trustees or shareholders shall be liable to the other party for any indirect, incidental, special, consequential, punitive, exemplary or other damages of any kind, including without limitation damages for loss of profits, goodwill, use, data or other tangible or intangible losses or any other damages based on contract, tort, strict liability or any other theory(even if such party had been advised of the possibility of such damages), in relation to this EULA.
8.4. In particular, the operation of the Licensed Application may be interrupted due to maintenance updates, or system or network failures (if any). However, if Licensor is notified of any interruption or errors in functioning of the Licensed Application, Licensor shall on a best-efforts basis cure such interruption or functional errors, wherever possible.
9. Confidentiality: The Licensed Application contain information, ideas, data structures, data base models, concepts, designs, methods and processes that constitute the business and trade secrets of Exponent. You shall (a) keep such Licensed Application and information confidential and treat the Licensed Application with the same diligence and confidentiality as your own business and trade secrets, (b) use the Licensed Application as set out in the EULA, and (c) not grant full or partial access to third parties in any way or form or publish the Licensed Application, unless having been given prior written authorization to do so by Exponent. You shall ensure, through appropriate instructions, agreements and other suitable precautions, that all end users of the corresponding e^pack or e^pack enabled vehicle, comply with the obligations set out herein. The obligation of confidentiality shall remain in effect for as long as Exponent has a legitimate interest in the Licensed Application and even after the contractual relationship between the parties has terminated.
10.1. You agree to indemnify, defend and hold harmless the Licensor, and its affiliates, and their respective officers, partners, directors, employees and representatives, from and against all losses, expenses, damages, costs, claims and demands, including reasonable attorney's fees and related costs, due to or arising out of your failure to comply with this EULA or if any of the representations/warranties/covenants under this EULA are untrue, any fraud or misrepresentation, and/or non-compliance with applicable law. Exponent reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by You, and in such case, you agree to fully cooperate with such defence and in asserting any available defences.
10.2. The Licensor agreed to indemnify, defend and hold You harmless from and against all losses, expenses, damages, costs, claims and demands, including reasonable attorney's fees and related costs, due to or arising out of the Licensor’s failure to comply with its obligations under this EULA. You reserve the right, at your own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by the Licensor, and in such case, Licensor agrees to fully cooperate with such defence and in asserting any available defences.
11.1. Where either party has breached this EULA (“breaching party”), such breaching party shall promptly notify the said breach to the other party. Where the breaching party has breached this EULA without knowledge of the same, the other party will notify the said breach to the breaching party. The other party may terminate this EULA if such breaching party does not cure the notified breach of this EULA within 15 (fifteen) days of notification of such breach, as notified by the breaching party.
11.2. The terms of this EULA shall remain operative and applicable on both parties, with respect to a specific e^pack, till such time such e^pack is in use, as permitted by Exponent.
11.3. Except for those e^packs already purchased by You, either party may terminate this EULA by providing the other party written notice of 15 (fifteen) days and thereafter You shall be prohibited from using the e^pack, to which such EULA termination relates. The Licensor reserves theright to unilaterally modify, discontinue or withdraw the Licensed Application in whole or in part, with notice to You.
11.4. The provisions which are by their nature, intended to survive the expiry or termination of this EULA, shall survive the termination of this EULA, including all provisions regarding ownership of intellectual property, indemnification, confidentiality, disclaimer of warranties and limitations of liability, and the provisions of this section.
11.5. The termination or expiration of the EULA will not limit any of either party's rights or remedies under this EULA or under applicable law.
12. Changes to the EULA: Licensor reserves the right to make changes to the EULA at any time on mutually acceptable terms, and will duly discuss such changes with You.
13. Severability: If any part of this EULA is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be
deemed to be superseded by a valid, enforceable provision that most closelymatches the intent of the original provision and the remainder of the EULAshall continue in effect.
14. Governing Law and Dispute Resolution: This EULA shallbe governed by and constructed in accordance with the laws of India, withoutreference to conflict of laws principles. The courts in Bengaluru, India shallhave the exclusive jurisdiction to determine any disputes arising in relationto, or under this EULA.
15. Third Party Service or Content: Third parties are solely responsible for any third-party service or content hosted in and along with the Licensed Application. To that extent, Exponent disclaims any warranty with regard to such third-party service or content, including the availability of such services and content in the country where You are located.
16. Support and Upgrades:
16.1. Principle: Your rights to access and benefit from any upgrades and support related to the Licensed Application is depending upon the type of license afforded to You. Your access to such upgrades and support maybe: (a) included in the license; (b) absent by default from the license, in which case access to upgrades and support may be specifically subscribed for a specific Licensed Application, providing payment of the applicable fees; or (c) included in the license for a limited term only when specified, in which case it can be renewed as a specific Licensed Application by paying the applicable fees, if any.
16.2. Upgrades: Exponent may provide upgrades to the Licensed Application, including modification or discontinuation of certain functionalities of the Licensed Application, at its sole discretion, upon the following terms and conditions: (a) You may continue to use the previous version of the Licensed Application together with such upgrade provided that both are used within the same e^pack or e^pack enabled vehicle, as the case may be, subject to the compliance of such EULA terms of the previous version of the Licensed Application; (b) Subject to the type of license afforded to You, You may refuse to accept an upgrade, it being specified however that (i) certain functionalities of the Licensed Application may be restricted and (ii) Exponent shall have no further obligation to provide support on any previous versions of the Licensed Application, but may at its sole discretion provide limited assistance; (c) Unless Exponent provides other applicable terms and conditions specific to the use of such upgrade, the terms and conditions of the EULA shall continue to apply. If amended terms and conditions of the license are provided with such upgrade, such new terms and conditions shall apply upon the use of the upgraded Licensed Application. If no amended terms and conditions of the license are provided, this EULA shall continue to apply.
16.3. Exponent shall have no further obligation to provide assistance, upgrades and/or support on the Licensed Application when this EULA has been terminated, unless the parties agree otherwise.