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Please read this agreement carefully prior to your purchase of Somnetics license or prior to installation of Somnetics software for evaluation. By purchasing the Somnetics license certificate or by installing Somnetics software into your computer for evaluation or other usage, you have agreed that this agreement is enforceable like any written contract signed by you.
This license is between you and applies to the Software (as defined below). This license explains your rights to use the Software. By signing, either electronically or manually – you accept this license and agree to comply with its terms and conditions.
“Somnetics Software” – The software program distributed by the Licensor or its distributors, resellers or other authorized business partners, under the name Somnetics (or under a replacing product name, should the product be renamed), as produced by the Licensor, including its documentation, related explanatory materials in printed, electronic, or online form, and upgrades, modified or subsequent versions and updates of the software. The Operating System (OS), Database, Antivirus Programs, Web Servers and others software needed to run “Somnetics Software” are NOT considered to be a part of Somnetics Software and not covered under the scope of this agreement.
“to Use the Somnetics Software” – To store, load, install, execute, evaluate and/or display (to “Use”) the Somnetics Software.
“Somnetics" means Som Imaging Informatics Private Limited, a company incorporated under the provisions of the Companies Act, 1956 and having its registered office at Tower – 1, Unit 1904, PS Srijan Corporate Park, GP Block, Sector – V, Bidhan Nagar, Kolkata – 700091, India and owner of the Software.
“Licensee” – You, the end user of the Somnetics Software; a natural or a legal person or entity. The legal identity of the Licensee may change due to a merger, acquisition or other types of succession.
“Licensor” – Som Imaging Informatics Pvt. Ltd., the provider of the Somnetics Software; a natural or a legal person or entity. The legal identity of the Licensee may change due to a merger, acquisition or other types of succession.
“License Key” – A unique key-code that enables an Authorized User to use Somnetics Software. Only Licensor and/or its representatives are permitted to produce License Keys for the Somnetics Software.
“License Certificate” – Evidence of a license provided by Licensor to Licensee in electronic or printed form.
Any e-mail from the Licensor including a License Key and intending to grant or extend the license to Use the Somnetics Software is construed as a License Certificate.
Active product subscription on Somnetics Website is construed as a License Certificate.
“Agreement” – This end-user license agreement, the current document.
“Authorized User(s)” – A natural person or persons that are granted the License to Use Somnetics Software according to section III (“Grant of License”).
“Employee of Licensee” – A person who is an employee, independent contractor or other temporary worker, or a member of the Licensee or its affiliates.
“Third Party Software” – Software and other materials prepared and owned by software vendors other than Licensor.
I. Somnetics Software is the property of Licensor. Title and copyrights to Somnetics Software, in whole or in part, and all copies thereof, and all modifications, enhancements, derivatives and other alterations of Somnetics Software, regardless of who made them, if any, are, and will remain, the sole and exclusive property of Licensor.
II. Somnetics Software is intellectual property protected by copyright laws and international treaty provisions
III. The structure, organization, and code embodied in Somnetics Software are the valuable and confidential trade secrets of Licensor and its suppliers and are protected by intellectual property laws and treaties
IV. Somnetics Software may contain methods and techniques patented by Licensor in India and other countries. The patented methods and techniques are protected by the patent law and relevant international treaties
Some Third Party Software included in the Somnetics Software may be subject to other terms and conditions. These terms and conditions are available in the separate file “TPL.txt” included in the Somnetics distributions, and directly from the web sites of the corresponding vendors.
The Licensee agrees that he will not remove, obscure, make illegible or alter any notices or indications of the IP Rights and/ or Licensor’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to any materials.
The Licensee is not allowed to undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Somnetics software or any part thereof except to the extent permitted by law.
The Authorized User is allowed to make one back-up copy of Somnetics Software solely for archival purposes.
Each of the License grants are valid for the specific Authorized User(s). If the Licensee is a legal person, then the Licensee itself is just a party of this Agreement. The natural person(s) authorized to use Somnetics Software is/are the particular natural person(s) who is/are defined below as the Auhtorized User(s).
Licensor hereby grants an Evaluating Licensee a non-exclusive, non-sublicensable, non-assignable, time-limited license to Use the Somnetics Software according to the terms and conditions of this Agreement (the “Evaluation License”) and the Evaluating Licensee accept this Evaluation License by downloading and installing the Somnetics Software.
I. The Authorized User is solely the Evaluating Licensee, a single natural person
II. The evaluation period starts as soon as the evaluation License Key is sent to the Licensee, and lasts for 30 days after receipt of the License Key unless clearly specified otherwise by the Licensor while sending the License Key (“Evaluation Period”)
III. The Evaluation License is granted only for the Evaluation Period
IV. Each Evaluating Licensee is only allowed to evaluate the Somnetics Software during a total of one Evaluation Period. The Evaluation Period can be extended by the Licensor on special circumstances by sending the Licensee an additional License Key for evaluation extension. This will extend the Evaluation Period as specified in the evaluation extension e-mail
V. Upon expiration of Evaluation Period, Evaluating Licensee must obtain a License Certificate to continue using Somnetics Software or cease using Somnetics Software immediately. Somnetics Software contains a feature that will automatically disable itself upon expiration of Evaluation Period. Licensee may not disable, destroy, or remove this feature of Somnetics Software, and any attempt to do so will be in violation of this Agreement and will terminate Licensee’s rights to Use Somnetics Software
Licensor hereby grants the Authorized Users of a Commercial Licensee who is holding a valid License Certificate of type “Somnetics Base”, a non-exclusive, non-sublicensable, non-assignable, time-limited license (the “Base License”) to Use the Somnetics Software according to the terms and conditions of this Agreement and the Licensee accepts this Commercial License by purchasing the License Certificate.
I. If the Licensee is a legal person, the Authorized Users are fixed Employees of Licensee and cannot be changed after the purchase of the License Certificate. Usage of the Somnetics Software by other Employees of Licensee is prohibited under any circumstances
II. The License is granted only for the time period specified in the License Certificate
III. The Licensee acknowledges that by holding a Somnetics Base License and using the corresponding License Key, the license server and associated features will be unavailable to him
Licensor hereby grants the Authorized Users of a Commercial Licensee who is holding a valid License Certificate of type “Somnetics Enterprise”, a non-exclusive, non-sublicensable, non-assignable, time-limited license (“Enterprise License”) to Use the Somnetics Software according to the terms and conditions of this Agreement and the Licensee accepts this License by purchasing the License Certificate. The Enterprise License is subject to the same terms and conditions as is the Base License, with the following exceptions:
I. The Authorized Users are the registered no of Employees of the Licensee, with the restriction that the number of concurrent (“floating”) users cannot exceed
I.I The maximum concurrent users permissible in the License Certificate held by the Licensee for Client Access Licensing system (CAL)
Subject to the terms of this Agreement, Licensee is granted a right to use the Software for evaluation purposes without registering the runtime instances or obtaining a License Key from the Licensor, for a period of thirty (30) days from the date of installation of the Software otherwise specified as the “Evaluation Period".
Upon expiration of Evaluation Period, Licensee may obtain a License Key for perpetual use of the Software or cease using the Software. The Software contains a feature that will automatically disable the Software upon expiration of Evaluation Period. Licensee may not disable, destroy, or remove this feature of the Software, and any attempt to do so will be in violation of this Agreement and will terminate Licensee's rights to use the Software.
i. Somnetics may audit your use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals the use of the Software by you other than in full compliance with the terms of this EULA, you shall reimburse Somnetics for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance. You agree that Somnetics may use technological means to monitor your use of the Software and you hereby consent to such technological means as may be necessary to monitor your use of the Software without notice by Somnetics.
ii. License rights under this EULA are non-exclusive. In addition, license rights under this EULA are non-transferable unless otherwise agreed by Somnetics.
The Licensee will not sub-license, lease, rent, or lend their rights in the Software, Documentation, or license keys, as granted by this Agreement, to any party without prior written consent of Somnetics.
All types of Licenses are independent of the product version of the Somnetics Software. The Licensee can upgrade to a newer version at any time, if not stated otherwise in the Agreement attached to the new version of the Somnetics Software. By upgrading to a newer version, the Licensee accepts the terms and conditions of the Agreement attached to the newer version if the Agreement has changed between the two versions of the Somnetics Software.
The usage of Somnetics Software is allowed only on basis of a License of any type granted to the Authorized Users above. If in any circumstances should an Authorized User or any third person discover or create a way to Use the Somnetics Software, with or without a License Key, beyond the scope of the License granted to him, this by no means indicates that this Use of Somnetics Software is allowed.
Subject to any statutory warranties which cannot be excluded, licensor makes no warranties or conditions either express or implied, including but not limited to, the implied warranties or conditions of merchantability, fitness for a particular purpose, and non-infringement, regarding Somnetics SOFTWARE. Although Licensor will make reasonable efforts to fix errors in Somnetics Software, the Licensee acknowledges and accepts that the Somnetics software is provided “as is”.
To the extent not prohibited by law, in no event will licensor be liable for any lost revenue, profit or data, or for special, indirect, consequential, incidental or punitive damages, however caused regardless of the theory of liability, arising out of or related to the use of or inability to use Somnetics software, even if licensor has been advised of the possibility of such damages.
In no event will Licensor’s liability to the Licensee, whether in contract, tort (including negligence), or otherwise, exceed the amount paid by the Licensee for the Somnetics Software. The foregoing limitations will apply even if the above stated warranty fails of its essential purpose.
I. Licensor will defend and indemnify Licensee for all costs (including reasonable attorneys fees) arising from a claim that Somnetics Software furnished and used within the scope of this Agreement infringes any copyright or patent provided that:
I.I. Licensee notifies Licensor in writing within 30 days of the claim;
I.II. Licensor has sole control of the defense and all related settlement negotiations, and
I.III. Licensee provides Licensor with the assistance, information, and authority necessary to perform the above
II. Licensor will have no liability for any claim of infringement based on
II.I. Code contained within Somnetics Software which was not created by Licensor;
II.II. Use of a superseded or altered release of Somnetics Software, except for such alteration(s) or modification(s) which have been made by Licensor or under Licensor’s direction, if such infringement would have been avoided by the use of a current, unaltered release of Somnetics Software that Licensor provides to Licensee, or
II.III. The combination, operation, or use of any software furnished under this Agreement with programs or data not furnished by Licensor if such infringement would have been avoided by the use of Somnetics Software without such programs or data.
II.III. The combination, operation, or use of any software furnished under this Agreement with programs or data not furnished by Licensor if such infringement would have been avoided by the use of Somnetics Software without such programs or data.
III. In the event Somnetics Software is held or believed by Licensor to infringe, or Licensee’s use of Somnetics Software is enjoined, Licensor will have the option, at its expense, to
III.I. Modify Somnetics Software to cause it to become non-infringing;
III.II. Obtain for Licensee a license to continue using Somnetics Software;
III.III. Substitute Somnetics Software with other software reasonably suitable to Licensee, or
III.IV. If none of the foregoing remedies are commercially feasible, terminate the License for the Somnetics Software and refund the proportionate part of the License fees that is calculated in the following way: [refunded sum] = [whole fees paid] * [length of canceled license period] / [length of originally intended license period].
III.V. This section states Licensor’s entire liability for intellectual property rights infringement
The Licensee agrees to hold harmless and indemnify Licensor, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners from and against any third party claim arising from or in any way related to (a) the Licensee’s breach of this Agreement, (b) the Licensee’s use of the the Somnetics Software, or (c) the Licensee’s violation of applicable laws, rules or regulations in connection with the Somnetics Software, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, the Licensor will provide the Licensee with written notice of such claim, suit or action.
The Limited Warranty and Disclaimer, Limited Liability and Indemnification set forth above are fundamental elements of the basis of the agreement between Somnetics and you. Somnetics would not be able to provide the Software on an economic basis without such limitations. Such Limited Warranty and Disclaimer, Limited Liability and Indemnification inure to the benefit of Somnetics.
For an Unpaid Licensee, the Licensor will have no obligation to provide support, updates, patches, bug fixes or other enhancements.
For a Commercial Licensee holding a valid License Certificate, support will be available during the period of validity of Licensee’s License Certificate as follows:
I. For holders of a paid License Certificate of any type, Forum Support (if any) and E-mail Support are guaranteed to be available at least during a period of one year from the purchase of the License Certificate. The response time will be reasonable, but no specific response time guarantees are given
II. For holders of License Certificate with “Software Support Agreement” (SSA), support will be as per the Service Level Agreement (SLA) as mentioned in the SSA
Any guarantees of support availability only apply to the latest version of Somnetics Software. The Licensee is allowed to upgrade to the latest version as specified by this Agreement
If any dispute or difference whatsoever arising between parties hereto out of or relating to the construction meaning and operation or effect of this agreement or breach thereof, which cannot be settled between the parties shall be settled in accordance with the provisions of Arbitration & Conciliation Act, 1996 and the Rules framed there under and the award made in pursuance thereof shall be final and binding on the parties. The venue of the Arbitration shall be at Kolkata. The Arbitration proceedings shall be conducted in English.
Licensee agrees to be identified as a customer of Licensor and that Licensor may refer to Licensee by name, trade name and trademark, if applicable, and may briefly describe Licensee’s business in Licensor’s marketing materials, on Licensor’s web site, in public or legal documents. Licensee hereby grants Licensor a license to use Licensee’s name and any of Licensee’s trade names and trademarks solely pursuant to this marketing section.
For an opt-out of this term, please contact legal@somnetics.in
Licensee acknowledges and agrees that the Somnetics Software may contain a feature that reports the usage statistics of the Somnetics Software back to the Licensor.
I. The information that might be reported is used for statistics and product improvement only
II. No information that is not directly related to the Use of the Somnetics Software is gathered
III. All gathered information is anonymous (the information is not associated with the identity of the Licensee)
I. If any information on the working principles of the Somnetics Software that has not previously been publicly revealed by the Licensor has become known to the Licensee while receiving customer support or by other means of communication with the Licensor, the Licensee is obliged to keep this information confidential
II. The Licensor will keep confidential any information that the Licensee has sent to E-mail Support. If a piece of information is such as the Licensee’s interest for its confidentiality is not generally understandable or is surprising, confidentiality will be guaranteed only if the Licensee explicitly requests it in the same e-mail containing this information
III. Any information Licensee posts to Forum Support is public by its nature. The Licensor can and will do nothing to stop this information from spreading. It is the Licensee’s own responsibility to send any confidential, revealing or otherwise sensitive information to E-mail Support only
Licensee will pay to Licensor the license fee and other charges and expenses as set forth in an appropriate invoice or other purchase documentation (“Invoice”). Licensor may charge interest for any payment that is past the payment date as specified by the Invoice, or if left unspecified on the Invoice, that is more than thirty (30) days since the date of the Invoice.
I. The interest rate is one and one-half percent (1.5%) per month. If this interest rate exceeds the maximal rate allowed by the law, the applied rate will be the the maximal rate allowed by the law
This Agreement contains the entire agreement of the Parties with respect to the subject matter of this Agreement, and supersedes all prior negotiations, agreements and understandings with respect thereto. This Agreement may only be amended by a written document duly executed by the Parties.
If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
No waiver of any provision or condition herein shall be valid unless in writing and signed by you and an authorized representative of Licensor provided that no waiver of any breach of any provisions of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach. Licensor’s failure to insist upon or enforce strict performance of any provision of this Agreement or any right shall not be construed as a waiver of any such provision or right.
Licensor can at any time alter prices, features, specifications, capabilities, functions, release dates, general availability or other characteristics of the Somnetics Software. This will not affect the Commercial Licensee in his usage of the version of the Somnetics Software the Licensee is using at the moment of these alterations, during the validity of the License Certificate he is currently holding.
Licensor can at any time alter prices, features, specifications, capabilities, functions, release dates, general availability or other characteristics of the Somnetics Software. This will not affect the Commercial Licensee in his usage of the version of the Somnetics Software the Licensee is using at the moment of these alterations, during the validity of the License Certificate he is currently holding.
Licensor will reserve itself a right to change the terms of the current Agreement at any moment by making the new revision of this Agreement available on Licensor’s website and including it in the future releases of the Somnetics Software.
I. By updating the Somnetics Software to a newer version that includes the new revision of this Agreement, the Licensee agrees to the new revision of this Agreement
II. By purchasing or otherwise receiving and accepting a new License Certificate, or otherwise extending the period of Use of the Somnetics Software, the Licensee agrees to the latest revision of this Agreement available at that moment on Licensor’s web site
III. If the Licensees are informed of an update of the terms via e-mail, the Licensee who does not agree to the new terms must inform the Licensor about his disagreement by sending an e-mail to E-mail Support within 30 days since Licensor’s original e-mail. If a Commercial Licensee does not inform Licensor about his disagreement within 30 days, it is taken that he agrees to the new terms
This Agreement is effective until terminated.
Expiration or nonexistence of the License does not terminate the Agreement. The termination of the Agreement also terminates any License given in this Agreement.
This Agreement will terminate immediately without notice from Licensor if the Licensee fails to comply with any provision of this Agreement.
The Evaluating Licensee may terminate this Agreement at any time by destroying all copies of the Somnetics Software. The Commercial Licensee may terminate this Agreement at any time by destroying all copies of the Somnetics Software and notifying Licensor by e-mail.
Upon termination of the Agreement, the Licensee must destroy all copies of the Somnetics Software.
Upon termination of this Agreement, all terms in sections “Intellectual Property Rights” (section II), “Disclaimer of Warranty and Limitation of Liability” (section IV), “General terms” (section VI) and other terms that should survive due to their nature will continue to be effective.
Licensee agrees that upon termination of this agreement for any reason, Licensor may take actions so that Somnetics Software no longer operates.
Tower – 1, Unit 1904, PS Srijan Corporate Park,
GP Block, Sector – V, Bidhan Nagar,
Kolkata – 700091, West Bengal, India
For Technical Support: E-mail: support@somnetics.in
For Queries or Clarifications on Legal matters: legal@somnetics.in