GEMS - Comprehensive Pile Foundation Analysis
Copyright (c) 1998 - 2023 Geotechnical Engineering Modelling Software (GEMS) LLP & V.S.Chandrasekaran

*** END USER LICENSE AGREEMENT ***

LAST UPDATED AS ON: 5th January 2023

Geotechnical Engineering Modelling Software (GEMS) LLP ("GEMS", "We", "Us" "Our", "Provider") is incorporated under the laws of India having registered office at Bangalore Karnataka 560076 India whereby GEMS develops advanced and intuitive Computer Aided Design and Engineering (CAD & E) software for analysis and design of foundations for civil engineering structures including without limitation buildings, bridges, waterfront structures, offshore platforms, inter-alia

 

This End-User License Agreement ("EULA") is a legal agreement between a Customer ("You", "User", "Your") and Geotechnical Engineering Modelling Software (GEMS) LLP.

This EULA agreement governs your acquisition and use of our GEMS - Comprehensive Pile Foundation Analysis ("Software") directly from Geotechnical Engineering Modelling Software (GEMS) or indirectly through a Geotechnical Engineering Modelling Software (GEMS) authorized reseller or distributor (a "Reseller") or partner or via download from the internet.

Please read this EULA agreement carefully before completing the installation process and using the GEMS - Comprehensive Pile Foundation Analysis software. It provides a license to use the GEMS - Comprehensive Pile Foundation Analysis software and contains warranty information and liability disclaimers.

If you register for a free trial or Beta trial of the GEMS - Comprehensive Pile Foundation Analysis software, this EULA agreement will also govern that trial. By clicking "accept" or installing and/or using the GEMS - Comprehensive Pile Foundation Analysis software, you are confirming your acceptance of the Software and agreeing to become bound by the terms of this EULA agreement.

If you are entering into this EULA agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this End User License Agreement (EULA). If you do not have such authority or if you do not agree with the terms and conditions of this End User License Agreement (EULA), do not install or use the Software, and you must not accept this End User License Agreement (EULA).

If you do not agree to be bound by this agreement, remove GEMS - Comprehensive Pile Foundation Analysis from your computer now and, if applicable, promptly return to Geotechnical Engineering Modelling Software (GEMS) LLP by mail any copies of GEMS - Comprehensive Pile Foundation Analysis and related documentation and packaging in your possession.

This EULA agreement shall apply only to the Software supplied by Geotechnical Engineering Modelling Software (GEMS) LLP herewith regardless of whether other software is referred to or described herein. The terms also apply to any Geotechnical Engineering Modelling Software (GEMS) updates, supplements, Internet-based services, and support services for the Software, unless other terms accompany those items on delivery. If so, those terms apply.

 

 

1.  Definitions

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In these End User License Agreement (EULA), except to the extent expressly provided otherwise:

 

"Access Credentials" means the usernames, passwords, email address and other credentials enabling access to the Services, including both access credentials for the User Interface and access credentials for the API.

 

"Affiliate" for purposes of this Agreement, the term, shall mean any entity, individual, firm, or corporation, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with the concerned Party or any individual, firm or corporation declared to be an Affiliate as by the concerned Party     .

"API" means the application programming interface for the Services defined by the Provider and made available by the Provider to the Customer.

 

"Applicable Law" means the laws prevailing in India and the applicable law of General Data Protection Regulation (GDPR)

 

"Business Day" means any weekday other than a bank or public holiday in India.

 

"Business Hours" means the hours of 09:00 to 17:00 IST on a Business Day.

 

"Charges" means the amounts specified in the invoice statement issued by the provider or as stated in the service order form from time to time.

 

"Country" means the Union of India

 

"Customer" means the person or entity who signs up for our Services or who signs up to download our software.

 

"Customer Personal Data" means any personal data that is processed by the provider on behalf of the customer in relation to the agreement but excluding personal data with respect to which the Provider is a data controller.

 

"Data Protection Laws" means all applicable laws relating to the processing of personal data including, while they are in force and applicable, the United Kingdom’s Data Protection Act 2018, the General Data Protection Regulation (Regulation (EU) 2016/679 and India’s Information Technology Act, 2000

 

"Documentation" means the documentation for the services produced by the provider and delivered or made available by the provider to the Customer.

 

"Download Form" means an online registration form published by the Provider and completed and submitted by the Customer incorporating this End User License Agreement (EULA) by reference for downloading the software.

 

"Effective Date" means the first date and time on which the customer completes and submits the sign-up form and or download form published by the provider on the provider's website.  If the software was procured by other means, the Effective date means you first date and time of the installation of the Software

 

"End User License Agreement (EULA)" means all the documentation containing the provisions of the agreement, namely the main body of these End User License Agreement (EULA), including any amendments to that documentation from time to time.

 

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, epidemics, pandemics, terrorist attacks and wars).

 

"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

 

"Personal Data" For customers in UK or EU it has the meaning given to it in the data protection laws applicable in the United Kingdom OR the European Union from time to time.  For customers in other countries, it means personal information such as name, email address, address, phone number, organization, financial information provided by the customer to the provider.

 

"Provider", "GEMS" means Geotechnical Engineering Modelling Software (GEMS) LLP a limited liability partnership established under the laws of India having its principal place of business in Bangalore, Karnataka, India.

 

"Services" means any services that the provider provides to the customer, or has an obligation to provide to the customer, under this End User License Agreement (EULA) including without limitation providing the user interface, patform and the software as defined below as a service to be used via the platform or for downloading purposes

 

"Services Order Form" means an online order form published by the Provider or an electronic document sent via email by the Provider and completed and submitted by the Customer incorporating this End User License Agreement (EULA) by reference.

 

"Sign-up Form" means an online registration form published by the Provider and completed and submitted by the Customer incorporating this End User License Agreement (EULA) by reference.

 

"Software" means that certain software including without limitation GEMS Foundation Analysis Suite and GEMS Cloud Applications available via our website, which will be made available by the Provider to each Customer as a service or the downloadable computer program owned or licensed by GEMS and provided to you under this Agreement for usage, including, without limitation, modelling foundations for civil engineering structures

 

"Source Code" shall mean the human-readable form of a computer program or Software and all related system documentation, including all comments and any procedural code such as job control language. 

 

"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Services, but shall not include the provision of training services.

 

"Supported Web Browser" means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari web browsers.

 

"Term" means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2.

 

"Terms and Conditions" means all the documentation containing the provisions of the Agreement, namely the main body of this End User License Agreement (EULA), including any amendments to that documentation from time to time.

 

"Open-Source Technology" means any technology from the open-source community, including without limitation, any software that requires, as a condition of use, modification and/or distribution of such software, that other software incorporated into, derived from or distributed with such software be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge.

 

"User Interface" means the interface for the Services designed to allow individual human users to access and use the Services.

 

"Website" refers to Geotechnical Engineering Modelling Software (GEMS), accessible from https://www.gemsoftware.org

 

 

2.  Term

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2.1  The Agreement shall come into force upon the Effective Date.

 

2.2  The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 15 or any other provision of this End Uses License Agreement (EULA).

 

2.3  Unless the parties expressly agree otherwise in writing, each Services Order Form shall create a distinct contract under this End Uses License Agreement (EULA).

 

2.4  We may update these terms, may add additional terms, may remove certain terms from time to time (1) to reflect changes in our services or how we do business (2) for legal, regulatory or security reasons, or (3) to prevent abuse or harm.  If we materially change these terms or add additional terms or remove certain terms, we’ll provide you with reasonable advance notice and the opportunity to review the changes, except (1) when we launch a new service or feature, or (2) in urgent situations, such as preventing ongoing abuse or responding to legal requirements. If you don’t agree to the new terms, you should contact us regarding the same and stop using the services. You can also end your relationship with us at any time by terminating your contracts with us.

 

 

3.  LICENSE GRANT

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3.1  Geotechnical Engineering Modelling Software (GEMS) LLP hereby grants you a personal, non-transferable, non-exclusive licence to use the GEMS - Comprehensive Pile Foundation Analysis software on your devices in accordance with the terms of this EULA agreement.  Geotechnical Engineering Modelling Software (GEMS) LLP does not transfer the title of GEMS - Comprehensive Pile Foundation Analysis to you; the license granted to you is not a sale.

3.2  You are permitted to load the GEMS - Comprehensive Pile Foundation Analysis software (for example a PC, Mac, Workstation, laptop, mobile or tablet) under your control. You are responsible for ensuring your device meets the minimum requirements of the GEMS - Comprehensive Pile Foundation Analysis software.

3.3  You shall use GEMS - Comprehensive Pile Foundation Analysis in compliance with all applicable laws and not for any unlawful purpose.

3.4  You are not permitted to:

a)   Edit, alter, modify, adapt, translate or otherwise change the whole or any part of the Software nor permit the whole or any part of the Software to be combined with or become incorporated in any other software, nor decompile, disassemble or reverse engineer the Software or attempt to do any such things

b)   Reproduce, copy, distribute, resell the Software for any commercial purpose

c)   Allow any third party to use the Software on behalf of or for the benefit of any third party

d)   Use the Software in any way which breaches any applicable local, national or international law

e)   Use the Software for any purpose that Geotechnical Engineering Modelling Software (GEMS) considers is a breach of this EULA agreement

f)   Without limiting the foregoing, use, display or distribution of GEMS - Comprehensive Pile Foundation Analysis together with material that is pornographic, racist, vulgar, obscene, defamatory, libelous, abusive, promoting hatred, promoting terror, discriminating or displaying prejudice based on religion, ethnic heritage, race, sexual orientation or age is strictly prohibited.

 


4.  Copyright Restriction
-------------------------

 

4.1  This Software contains copyrighted material, trade secrets and other proprietary material. You shall not, and shall not attempt to, modify, reverse engineer, disassemble or decompile GEMS - Comprehensive Pile Foundation Analysis. Nor can you create any derivative works or other works that are based upon or derived from GEMS - Comprehensive Pile Foundation Analysis in whole or in part.

 

4.2  Geotechnical Engineering Modelling Software (GEMS) LLP retains sole and exclusive ownership of all right, title and interest in and to GEMS - Comprehensive Pile Foundation Analysis and all Intellectual Property rights relating thereto.

 

4.3  Copyright law and international copyright treaty provisions protect all parts of GEMS - Comprehensive Pile Foundation Analysis, products and services. No program, code, part, image, audio sample, or text may be copied or used in any way by the user except as intended. All rights not expressly granted hereunder are reserved for Geotechnical Engineering Modelling Software (GEMS) LLP.

 

5.  Intellectual Property and Ownership
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5.1  Geotechnical Engineering Modelling Software (GEMS) LLP shall at all times retain ownership of the Software as originally downloaded by you and all subsequent downloads of the Software by you. The Software (and the copyright, and other intellectual property rights of whatever nature in the Software, including any modifications made thereto) are and shall remain the property of Geotechnical Engineering Modelling Software (GEMS) LLP.

 

5.2  Geotechnical Engineering Modelling Software (GEMS) LLP reserves the right to grant licences to use the Software to third parties.

 

 

6.  Evaluation and Trial
------------------------

 

6.1  For evaluation (or test or trial or demonstration) use, you may not sell the software, or use it after the evaluation period.

 

6.2  Evaluation (or test or trial or demonstration) software may not be used in a live operating environment.

 

6.3  Some software may be licensed on a trial basis. Your rights to use trial software are limited to the trial period. The trial software and length of the trial period are set forth during the download or activation process.

 

6.4  You may have the option to convert your trial rights to subscription or perpetual rights if presented to you at the expiration of your trial period. After the expiration of a trial period without conversion, most features of the trial software will stop running.

 

6.5  EVALUATION AND TRIAL SOFTWARE ARE LICENSED "AS-IS," AND YOU BEAR THE ENTIRE RISK AS TO THE SOFTWARE’S QUALITY AND PERFORMANCE. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL SERVICING OR REPAIR. GEOTECHNICAL ENGINEERING MODELLING SOFTWARE (GEMS) LLP GIVES NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, GEOTECHNICAL ENGINEERING MODELLING SOFTWARE (GEMS) LLP EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

 

 

7.  Activation
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7.1  Authorized Software and Activation. You are authorized to use this software only if you are properly licensed and the software has been properly activated with a genuine product key or by other authorized method.

 

7.2  When you connect to the Internet while using the software, the software will automatically contact Geotechnical Engineering Modelling Software (GEMS) LLP or its affiliates to confirm the software is genuine and the license is associated with the licensed device. Transmission of certain information will occur, and Internet, telephone service charges may apply.

 

7.3  During activation (or reactivation that may be triggered by changes to your device’s components), the software may determine that the installed instance of the software is counterfeit, improperly licensed or includes unauthorized changes. If activation fails, the software may not continue to work.

 

7.4  If you activated the software by Internet, you may be required to periodically reconnect to the Internet while using the software to confirm the license associated with the licensed device; and if you do not reconnect, the software may operate with reduced functionality.

 

7.5  You may also receive reminders to obtain a proper license for the software. You may not bypass or circumvent activation.

 

7.6  Certain updates, support, and other services might only be offered to users of genuine Geotechnical Engineering Modelling Software (GEMS).

 

 

8.  Support Services

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8.1  The Provider may provide the Support Services to the Customer during the Term but shall have no obligation to do so; any such Support Services shall be subject to this Clause 8.

 

8.2  The Provider may make available to the Customer an email-based helpdesk.

 

8.3  The Provider shall provide the Support Services with reasonable skill and care.

 

8.4  The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.

 

8.5  The Provider shall respond promptly to all requests for Support Services made by the Customer through the helpdesk.

 

8.6  The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 7 days' email/written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

 

 

9.  Updates
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9.1  Whereby any new updates/upgrades of the Services are launched by Geotechnical Engineering Modelling Software (GEMS) LLP, you may at your will, subscribe to such updates/ upgrades and in the event where you do not choose to update/upgrade the Software, certain features or functionality of the Software may no longer be accessible to you. 

 

9.2  You may obtain updates only from Geotechnical Engineering Modelling Software (GEMS) LLP or authorized sources.

 

9.3  In the event that the features made available require substantial modifications or additional services, then you may be required to pay charges as intimated by the GEMS from time to time.

 

9.4  You understand and agree that the support services by the GEMS with regard to a non-upgraded or older version of the Software may be limited.

 

10. Charges

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10.1 You shall pay the Charges to the Provider in accordance with this End User License Agreement (EULA). GEMS allows the use of the Services to the Customer on a subscription or perpetuity basis as opted for, by the Customer for a fee ("Fee") as applicable for the package/plan chosen by the Customer.

 

10.2 All amounts stated in or in relation to this End User License Agreement (EULA) are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.

 

10.3 The Provider may elect to vary any element of the Charges at its sole discretion by giving to the Customer not less than 30 days' written notice of the variation.

 

10.4 In the event that the Customer fails to make payments towards the fee or the renewal fee thereof, as and when they become due, the Provider shall terminate the access of the Services to the Customer.

 

 

11. Payments

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11.1 The Customer must pay the Charges to the Provider in advance of the period to which they relate. GEMS will use the services of quality third party payment service Providers to process your payment and makes certain methods of payment available including without limitation, Credit Cards, PayPal, UPI and Bank transfers ("Payment Method(s)"). Customer hereby authorizes the Provider and its Affiliates to process Payment Methods, to store information concerning Payment Methods to ensure the timely payment to the Provider pursuant to the Agreement and for the Services as opted for by the Customer, or to charge a Customer’s Payment Method for any purpose authorized under this End User License Agreement (EULA) or to otherwise compensate the Provider for a Customer’s failure to abide by this End User License Agreement (EULA).

 

11.2 If the Customer does not pay any amount properly due to the Provider under this End User License Agreement (EULA), the Provider may:

 

(a)    Charge the Customer interest on the overdue amount at the rate of 8% per annum above the Reserve Bank of India repo rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month);

 

11.3 When the customer purchases a subscription, the customer must provide the Provider with complete and accurate payment information. By submitting payment details you promise that you are entitled to purchase a subscription using those payment details. If the Provider does not receive payment authorization or any authorization is subsequently cancelled, the Provider may immediately terminate or suspend the customers access to their subscription. In suspicious circumstances the Provider may contact the issuing bank/payment provider and/or law enforcement authorities or other appropriate third parties. If the customer is entitled to a refund under this End User License Agreement (EULA), we will credit that refund to the card or other payment method the customer used to submit payment, unless it has expired in which case, we will contact the customer.

 

11.4 The provider does not represent or warrant that the transaction services provided by such third parties for modes of payment will be available, accessible, uninterrupted, timely, secure, accurate, complete, or entirely error-free. The Customer understands and agrees that provider shall bear no risk with respect to customer availing services, including, without limitation, any risk associated with card fraud or chargebacks.



12. Limitation and exclusion of liability
-----------------------------------------

 

12.1 To the fullest extent permissible by applicable law, in no event (including, without limitation, in the event of negligence) will Geotechnical Engineering Modelling Software (GEMS) LLP (Provider), its partners, its owners, its employees, its associates, its contractors, agents, resellers, distributors be liable for any consequential, incidental, indirect, special or punitive damages whatsoever (including, without limitation, damages for loss of property, damages to property, loss of lives, injuries, loss of profits, loss of use, business interruption, loss of information or data, or pecuniary loss), in connection with or arising out of or related to this Agreement, software/services sold/provided/hosted by the Provider or the use or inability to use software/ services provided/hosted by the Provider or the furnishing, performance or use of any other matters hereunder whether based upon contract, tort or any other theory including negligence.

 

If applicable law does not allow all or any part of the above limitation of liability to apply to you, the limitations will apply to you only to the extent permitted by applicable law.

 

12.2 The limitations and exclusions of liability set out in this Clause 12 and elsewhere in this End User License Agreement (EULA):

(a)  are subject to Clause 12.1; and

(b)  govern all liabilities arising under this End User License Agreement (EULA) or relating to the subject matter of this End User License Agreement (EULA), including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this End User License Agreement (EULA).

 

12.3 The Provider will not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.

 

12.4 The Provider will not be liable to the Customer in respect of any loss of profits or anticipated savings.

 

12.5 The Provider will not be liable to the Customer in respect of any loss of revenue or income.

 

12.6 The Provider will not be liable to the Customer in respect of any loss of business, contracts or opportunities.

 

12.7 The Provider will not be liable to the Customer in respect of any loss or corruption of any data, database or software.

 

12.8 The Provider will not be liable to the Customer in respect of any special, indirect or consequential loss or damage.

 

12.9 The Provider will not be liable to the Customer in respect of any losses arising out of the customer using a trial or demo or alpha test or beta test or test or evaluation version of an application or module of an application hosted by the Provider or downloaded from the Provider’s website.

 

12.10     The aggregate liability of the Provider to the Customer in any circumstance whatsoever, under the Agreement shall not exceed the lower of following sums:

 

The amount paid in aggregate by the Customer to the Provider for the purchase of the Software; or

 

INR 25,000 (Indian Rupees Twenty-Five Thousand Only)

 

 

13.  Indemnification

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13.1 The Customer shall indemnify, hold harmless, and defend the Provider, its partners, its owners, its employees, its associates, its contractors, agents, resellers, distributors against any and all claims, proceedings, demand and costs resulting from or in any way connected with your use of Provider’s Software / Services.



14.  Warranties
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14.1 Except as expressly stated in writing, Geotechnical Engineering Modelling Software (GEMS) LLP makes no representation or warranties in respect of this Software and expressly excludes all other warranties, expressed or implied, oral, or written, including, without limitation, any implied warranties of merchantable quality or fitness for a particular purpose. THIS DISCLAIMER CONCERNS ALL FILES GENERATED AND EDITED BY GEMS - Comprehensive Pile Foundation Analysis AS WELL.

 

 

15.  Termination

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15.1 Either party may terminate the Agreement by giving to the other party at least 30 days written notice of termination.

 

15.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this End User License Agreement (EULA).

 

15.3 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

 

(a)  the other party:

 

(i)  is dissolved;

(ii) ceases to conduct all (or substantially all) of its business;

(iii)     is or becomes unable to pay its debts as they fall due;

(iv) is or becomes insolvent or is declared insolvent; or

(v)  convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

 

(b)  an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

 

(c)  an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company re-organisation where the resulting entity will assume all the obligations of the other party under the Agreement); or

 

(d)  if that other party is an individual:

(i)  that other party dies.

(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii)     that other party is the subject of a bankruptcy petition or order.

 

15.4 It will also terminate immediately if you fail to comply with any term of this agreement. Upon such termination, the licenses, services granted by this agreement will immediately terminate and you agree to stop all access and use of the Software / Service.  Upon termination of this license granted herein for any reason, you agree to immediately cease use of GEMS - Comprehensive Pile Foundation Analysis software, destroy all copies of GEMS - Comprehensive Pile Foundation Analysis supplied under this Agreement. The provisions that by their nature continue and survive will survive any termination of this agreement.  The financial obligations incurred by you shall survive the expiration or termination of this license.

 

 

16.  Effects of termination

---------------------------

 

16.1 Upon the termination of the Agreement, all of the provisions of this End User License Agreement (EULA) shall cease to have effect, save that the following provisions of this End User License Agreement (EULA) shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1,11,12,13,16,21,22.

 

16.2 Except to the extent that this End User License Agreement (EULA) expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.

 

16.3 Within 30 days following the termination of the Agreement for any reason:

 

(a)  the Customer must pay to the Provider any Charges in respect of the software or services provided to the Customer before the termination of the Agreement; and

(b)  the Provider must refund to the Customer any charges paid by the Customer to the Provider in respect of the software or services that were to be provided to the Customer after the termination of the Agreement.

    

without prejudice to the parties' other legal rights.



17.  CONSENT OF USE OF DATA
---------------------------

 

17.1 You agree that Geotechnical Engineering Modelling Software (GEMS) LLP and its affiliate organizations may collect and use information gathered in any manner as part of the product licensing and product support services provided to you, if any, related to GEMS - Comprehensive Pile Foundation Analysis.

 

17.2 Geotechnical Engineering Modelling Software (GEMS) LLP may also use this information to provide notices to you which may be of use or interest to you.

 

17.3 As at the Effective Date, the Provider is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, the following third parties including without limitation: Google LLC, Zoho Corporation Pvt. Ltd., PayPal Holdings Inc, wyDay. LLC, RazorPay

 

 

18.  Force Majeure Event

------------------------

 

18.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

 

 

19.  3rd Party Licenses
-----------------------

 

19.1 Certain items of software included with the Product Software are subject to "open source" or "free software" licenses ("Open-Source Software"). Some of the Open-Source Software is owned by third parties. The Open-Source Software is not subject to the terms and conditions of this EULA. Instead, each item of Open-Source Software is licensed under the terms of the end user license that accompanies such Open-Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open-Source Software. If required by any license for particular Open-Source Software, Geotechnical Engineering Modelling Software (GEMS) LLP makes such Open-Source Software, and Geotechnical Engineering Modelling Software (GEMS) LLP’s modifications to that Open-Source Software, available by written request to at the email or mailing address listed below.

 

Additional details of the open-source software included can be found at https://www.gemsoftware.org/opensource

 

 

20.  Subcontracting

-------------------

 

20.1 Subject to any express restrictions elsewhere in this End User License Agreement (EULA), the Provider may subcontract any of its obligations under the Agreement.

 

 

21.  General
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21.1 No breach of any provision of the Agreement shall be waived except with the express written consent of the party not in breach.

 

21.2 If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

 

21.3 The Customer hereby agrees that the Provider may assign the Provider's contractual rights and obligations under the Agreement to any successor to all or a substantial part of the business of the Provider from time to time OR any third party - providing that such action does not serve to reduce the guarantees benefiting the Customer under the Agreement. Save to the extent expressly permitted by applicable law, the Customer must not without the prior written consent of the Provider assign, transfer or otherwise deal with any of the Customer's contractual rights or obligations under the Agreement.

 

21.4 The Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation, or settlement under or relating to the Agreement are not subject to the consent of any third party.

 

21.5 Subject to Clause 12.1, the Sign-up Form or Service Order Form or Download form, together with this End User License Agreement (EULA), Privacy Policy and any Schedules, shall constitute the entire agreement between the parties in relation to the subject matter of that Signup Form or Services Order Form or Download Form, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

 

21.6 This agreement, and any dispute arising out of or in connection with this agreement, shall be governed by and construed in accordance with the laws of India.

 

21.7 If the Customer has any concern or dispute about the Service, the Customer agrees to first try to resolve the dispute informally by contacting the Provider.

 

21.8 Arbitration: In the event of any dispute or difference between the Parties hereto, whether arising during the currency or after the completion of this Agreement, or after the determination thereof (whether for breach or for any other reason) in regard to any matter or thing of whatsoever nature arising out of this Agreement or in connection therewith, then either Party shall give to the other notice, in writing, of such dispute or difference and the same shall be settled by arbitration in Bengaluru, Karnataka, India in accordance with the Arbitration and Conciliation Act, 1996, or any statutory modification or substitution thereof. In case of arbitration, each party shall bear the cost of the Arbitrator appointed by each respective Party and the Parties agree and understand that the final award of the Arbitration proceedings shall be binding upon the Parties. The courts of Bengaluru, Karnataka, India shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.

 

21.9 If any provision shall be considered unlawful, void or otherwise unenforceable, then that provision shall be deemed severable from this License and not affect the validity and enforceability of any other provisions.

 

21.10     The formation, validity, interpretation, performance of, and the resolution of dispute arising out of, this Agreement shall be governed by the laws of India

 

 

22.  Interpretation

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22.1 In this End User License Agreement (EULA), a reference to a statute or statutory provision includes a reference to:

 

(a)    that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)    any subordinate legislation made under that statute or statutory provision.

 

22.2 The Clause headings do not affect the interpretation of this End User License Agreement (EULA).

 

22.3 References in this End User License Agreement (EULA) to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.

 

22.4 In this End User License Agreement (EULA), general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

 

 

23.  Questions or Additional Information
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23.1 If you have questions regarding this EULA, please contact Geotechnical Engineering Modelling Software(GEMS) LLP at support@gemsoftware.org or via our website https://www.gemsoftware.org