This End User License Agreement ("Agreement") is hereby entered into and agreed upon by and between you (“You”, “Your”/ “Licensee”), either an individual or a legal entity, and applicable 42Gears Entity as determined in accordance with this Agreement ("Licensor"/”42Gears”). This Agreement sets forth the terms and conditions under which Licensee is licensed to use the Software (as defined below) being distributed with this Agreement.
THIS IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND LICENSOR AND GOVERNS THE USE OF THE SOFTWARE INCLUDING, WITHOUT LIMITATION ALL THE ASSOCIATED DOCUMENTATION. BEFORE DOWNLOADING, INSTALLING, COPYING, OR USING THE SOFTWARE PLEASE READ THIS DOCUMENT. BY CLICKING ON THE "I AGREE" BUTTON TO DOWNLOAD, INSTALL OR USE THE SOFTWARE, YOU AGREE TO BE LEGALLY BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU”, “YOUR” SHALL REFER TO SUCH ENTITY.
IF YOU DO NOT AGREE TO THESE TERMS (I) DO NOT DOWNLOAD OR INSTALL THE SOFTWARE, (II) DO NOT USE THE SOFTWARE (III) IMMEDIATELY NOTIFY LICENSOR AND (IV) DELETE OR RETURN THE SOFTWARE TO LICENSOR.
THIS AGREEMENT APPLIES TO:
(1) ALL SUBSCRIPTIONS FOR 42GEARS’ HOSTED SOFTWARE AS A SERVICE (SAAS) SOLUTIONS
If the Software is a trial version, the following terms and conditions shall apply to Your use of the trial version of the Software.
- Trial version features. The trial license gives you a right to use the Software with restricted functionalities for evaluation purposes.
- Installation and use of trial version. The trial license lets you install one copy of the trial version on your device. You may only use the trial version for internal evaluation purposes during the trial period. You are not licensed to use the trial version for any commercial purpose.
- Trial period. The trial period is for thirty (30) days from the date of installation.
- Conversion of trial version to full-use version. During the trial period, you will receive notification/s that you may convert your trial license at any time to the full- use license (described below) by paying for a valid full-use license.
- DISCLAIMER OF WARRANTY. THE TRIAL VERSION OF THE SOFTWARE IS LICENSED “AS-IS.” LICENSOR GIVES NO EXPRESS WARRANTIES, GUARANTEES
- OR CONDITIONS. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, LICENSOR EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- LIMITATION ON AND EXCLUSION OF REMEDIES AND DAMAGES. YOU CANNOT CLAIM NOR RECOVER FROM LICENSOR ANY LOST PROFITS, LOSS OF DATA, CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, STATUTORY OR COMMON LAW ATTORNEY FEES ARISING FROM BREACH OF CONTRACT, BREACH OF WARRANTY, GUARANTEE OR CONDITION, STRICT LIABILITY, NEGLIGENCE, OR OTHER TORT. TO THE EXTENT ALLOWED BY APPLICABLE LAW, YOU CANNOT RECOVER FROM LICENSOR AND ITS RESELLERS ANY DAMAGES IN RESPECT OF USAGE OF TRIAL VERSION. THIS LIMITATION APPLIES TO ANY USE OF THE TRIAL VERSION OF SOFTWARE EVEN IF LICENSOR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
- Licensor does not provide any support services for the trial version.
- Sections 2, 9, 11, 17 and 26, in the full-use license section of this agreement below do not apply to the trial version.
TERMS FOR FULL-USE LICENSE FOR THE SOFTWARE:
The following terms and conditions apply when You acquire the full-use license of the Software.
- Authorized Users: Authorized Users are individual Licensees, employees of Licensee or third-party individuals that are accessing the Software on behalf of Licensee.
- Authorized Reseller: means a third party who is not our Affiliate and who is authorized by us or our Affiliate to resell or distribute Software to the Licensee.
- Annual Support and Maintenance: the technical support and maintenance services offered by the Licensor, on an annual basis, includes relevant Software Updates provided to Licensee at Licensor’s sole discretion.
- Device: means any computing device/instrument that is supported by the Software.
- Documentation: means the overview of the Software features and functionality such as user guide or any other software related information published at the website and as such revised and updated by the Licensor from time to time.
- Effective date: the date when the Licensee agrees to the terms and conditions of this EULA by signing up for an account.
- Licensee Data: means all data, information, and other materials that Licensee or its authorized users store, process or otherwise transmit through their use of SureMDM SaaS, including without limitation, user information etc.
- Licensee Network: means the hardware and software components, including client machines, servers, and internetworking devices within Licensee’s internal computer network at Licensee’s location.
- Perpetual License: means the Software license provided on a perpetual basis for the use of Software, hereinafter referred to as “Perpetual License”.
- Quote: means a written quotation of licensors’ offerings provided to the licensee by licensor, which is accepted by licensee and considered an “order” by signing and returning quotation to licensor.
- Software: 42Gears’s product SureMDM, consisting of Server application hosted on cloud, agent application installed on Customer’s mobile device and the associated documentation, provided to Customer by 42Gears pursuant to this Agreement, in object code format and as such Software is updated from time- to-time.
- Software related services: means service performed by the licensor as reflected in Order such as installation, activation, training, software configuration, modification, integration, reconfiguration, assessment, optimization or other software related services and excludes professional services for the development of custom software or other intellectual property (which would be governed by a separate agreement).
- Software Update: means any patches and modifications, enhancements, improvements and revisions of the Software, including new releases of Software, made available by Licensor at its discretion from time to time.
- Subscription License: means a software license provided on a subscription basis for the use of software, hereinafter referred to as “Subscription License”.
- Third Party Software: means software which is created or developed by a party other than the licensor and includes open-source software and excludes third party library.
- Website: means the website nominated from 42Gears Mobility Systems Private Limited from time to time, currently at www.42gears.com
2. LICENSE GRANT:
3. RESTRICTIONS ON USE:
Licensee shall not itself or authorize or permit any third party including its authorized users to:
(i) license, sell, rent, lease, assign, distribute, transmit, host, outsource the Software ; (ii) modify, disassemble, de-compile, decrypt, reverse engineer, create derivative works or otherwise attempt to determine the source code from the object code of the Software or knowingly permit or encourage any third party to do so; (iii) use the Software in any manner to provide service bureau, time-sharing or other computer services to third parties; (iv) use the Software, or allow the transfer, transmission, export, or re-export of the Software or portion thereof in violation of any export control laws or regulations administered by any government agency; or (v) copy or replicate the Documentation provided in relation to the Software in any form; (vi)use the Software to store or transmit infringing, libelous, unlawful, or tortious material or to store or transmit material in violation of any applicable laws or violates third party rights, including privacy rights; or (vii) use the Software for competitive analysis, evaluating or viewing the Software or Documentation for the purpose of designing, modifying, or developing software or services similar in purpose, scope, or function to the Software unless the same is notified to the Licensor in advance pursuant to the Agreement.
4. LICENSEE OBLIGATIONS:
5. SCOPE OF LICENSE:
The Software can be licensed as:
- Perpetual License: A perpetual license gives the Licensee a right to use the licensed version of the Software perpetually pursuant to the terms of this Agreement. Perpetual license comprises Annual Support and Maintenance during the initial term of 12 months. Upon expiration of 12 months, Annual Support and Maintenance along with relevant Software Update will be provided upon payment of the then current price offered by the Licensor.
- Subscription License: Subscription license gives the Licensee a right to use the Software (current or at any time the latest version) during the term of subscription. The license fee is inclusive of Software update; thus, Licensee will automatically receive relevant updates during the term of subscription. The Licensee's right to use the software will forfeit upon the expiry of term of subscription or failure to comply with the terms stated herein the Agreement.
Licensee may make a copy of the Software solely for backup, disaster recovery or archival purposes or system maintenance, ensuring the continued availability of the Software to authorized users or is otherwise expressly permitted by law. Any copy of the Software must clearly show all titles, trademark, copyright notices, legends, and other proprietary markings of
the Licensor without modifications. Licensee recognizes that the Software and its Documentation are protected by copyright and other relevant laws. Licensor shall not be liable in the event of the loss of data where such loss is due to the device malfunction, intentional act or omission or negligence of the Licensee.
Further, the Licensee shall be solely responsible for taking appropriate action to secure, protect and backup the data and account on the managed devices.
7. LOCATION BASED SERVICES:
8. OWNERSHIP AND RESERVATION OF RIGHTS:
42Gears grants no ownership rights to Customer and is not a sale of any rights in the Software or the Documentation. 42Gears shall own and retain ownership of all right, title, and interest in and to (i) the Software and any copies thereof; the Documentation and any copies thereof; (iii) any ideas, suggestions, or feedback relating to the Software and Documentation (“Feedback”); and (iv) all intellectual property rights embodied within the foregoing (i)-(iii). Customer hereby irrevocably assigns and agrees to assign all of Customer’s right, title, and interest in and to any Feedback to 42Gears. To the extent such Feedback cannot be assigned, Customer hereby grants and agrees to grant to 42Gears at no charge a perpetual, irrevocable, royalty-free, worldwide right to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit the Feedback without restriction. By signing this Agreement Customer irrevocably acknowledges that, subject to the rights granted herein, Customer has no ownership interest in the Software provided to Customer. 42Gears shall own all right, title, and interest in such Software/(s), subject to any limitations associated with intellectual property rights of third parties. 42Gears reserves all rights not specifically granted herein.
9. SYSTEM REQUIREMENTS
Licensee acknowledges and agrees that the Software may only be installed and used only on devices, which meets or exceeds the minimum system requirements identified and notified by the Licensor to Licensee from time to time. Licensee acknowledges and agrees that it is solely responsible for obtaining, installing, operating and maintaining all hardware, other equipment and third-party software required for use of the Software. All functionality, operating system, network services, hardware maintenance and data backup are the responsibility of the Licensee.
10. PROTECTION AND SECURITY:
11. THIRD PARTY SOFTWARE:
The Software may incorporate or access Third Party Software and services. Licensee agrees to and must ensure all users comply with all applicable terms and conditions for the Third-Party Software at all times. To the extent permitted by law, all Third-Party Software provided with or contained in the Software is provided “AS IS” without warranty of any kind. Licensor doesn’t assume and shall have no liability or responsibility for the operation or performance of the Third- Party Software and will not be liable for any damages, costs, or expenses, direct or indirect, arising out of the performance or failure to perform of the Third Party Software.
However, the Software may also contain or include Third Party libraries as provided in the following webpage: https://www.42gears.com/third-party-libraries-terms/LibraryNames.html for which Licensor holds the entire responsibility and legal obligations related thereof.
Exclusions to Confidential Information:
Confidential Information does not include information that: (a) was in the public domain at the time of Discloser's communication thereof to Recipient, (b) becomes part of the public domain after the time of disclosure, through no improper action of Recipient; (c) was in Recipient's possession free of any obligation of confidence at the time of Discloser's communication thereof to Recipient; (d) can be shown by documentation to have been independently developed by the Recipient without the use of or reference to any Confidential Information; (e) is not treated as confidential by Discloser; or (f) is approved for release by Discloser in writing. Recipient shall use any Confidential Information received (or derivatives thereof) solely for the purpose of performing its obligations under this Agreement.
Obligations to Confidential Information:
Recipient shall not disclose or permit any non-Affiliate party access to any Confidential Information, except Recipient’s officers, directors, employees, contractors, representatives, or agents on a need to know basis and where all such officers, directors, employees, contractors, representatives, or agents have confidentiality obligations at least as restrictive as those set forth in this Section. Recipient agrees to use reasonable efforts to protect the confidential or proprietary nature of such Confidential Information (and any derivatives thereof), using at least the same degree of care it utilizes for the protection of its own strictly confidential and proprietary information. The obligations under this Agreement will continue: (i) with respect to Confidential Information (and/or derivatives thereof) that does not constitute a trade secret, in perpetuity after the termination of this Agreement; and (ii) for any Confidential Information (and/or derivatives thereof) that constitutes a trade secret, for so long as such information remains a trade secret under applicable law. Notwithstanding the foregoing, in the event disclosure is required by court, government order, or law (such as state open records or freedom of information acts), Recipient shall promptly notify Discloser of such order or requested disclosure so that it may seek a protective order or other appropriate remedy and only disclose such Confidential Information to the extent required.
Return/ Deletion of Confidential Information:
All Discloser Confidential Information and derivatives thereof shall remain the property of Discloser and will be deleted or returned to Discloser within ten (10) days following the termination of this Agreement. Without limiting the foregoing or the Software Restrictions, Customer shall not disclose or display any Confidential Information of 42Gears, including the Software, to any Competitor of 42Gears.
Fees: The monthly subscription fees due for use of the Software on one device is specified in the 42Gears’s website (in case of direct purchase from 42Gears), fees quoted by 42Gears’s authorized reseller (if Software is purchased from 42Gears’s authorized reseller). 42Gears may offer
discounts, at its discretion in case Customer makes a bulk purchase of the Software for use in multiple devices. Fees will be calculated based on the number of devices on which the Software will be downloaded and the period for which it will be used. The fees are exclusive of applicable taxes and any such taxes shall be assumed and paid by the Customer except those taxes based on the net income of 42Gears. This provision does not apply to any taxes for which Customer is exempt, provided Customer has furnished 42Gears with a valid tax exemption certificate.
Payment Due Date: The applicable fees is due for payment before accessing the commercial version of the Software. Applicable fees for the subscription of the Software shall be due upon the expiry of the existing subscription. In case Customer is approved a payment credit period by 42Gears in writing, Customer has to pay the fees due within the credit period.
15. THIRD PARTY CLAIMS:
If any person alleges, or if the licensor believes, that the use of the Software may infringe the intellectual property rights of any person, licensor may, at its discretion, suspend Licensee’s license to use the Software until the licensor:
- has replaced, modified or re-worked the Software, in whole or in part (or direct Licensee to do so) so that such infringement is removed; or
- has procured the right for Licensee to continue use of the Software in accordance with this EULA.
16. OWNERSHIP RIGHTS
This license grants no title or ownership rights to Licensee and is not a sale of any rights in the Software (including Enhancements and Upgrades) or the Documentation. Licensor shall own and retain ownership of all right, title, and interest in and to (i) the Software and any copies thereof; (ii) the Documentation and any copies thereof; (iii) any ideas, suggestions, or feedback from You relating to the Software and Documentation (“Feedback”); and (iv) all intellectual property rights embodied within the foregoing (i)-(iii). Licensee hereby irrevocably assigns and agrees to assign all of Licensee’s right, title, and interest in and to any Feedback to Licensor.
Further all Feedback shall be deemed non-confidential to Licensee. To the extent such Feedback cannot be assigned, Licensee hereby grants and agrees to grant to Licensor at no charge, a perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit the Feedback without restriction.
In the course of performance of this EULA, either party (“Discloser”) may find it necessary to disclose to the other party (“Recipient”), or Recipient may otherwise obtain from Discloser, certain proprietary information or materials, which are in tangible form and labelled “confidential” or the like, or, information which a reasonable person knew or should have known to be (“Confidential Information”) The following information shall be considered Confidential Information whether or not marked or identified as such: information regarding licensors’ pricing, product roadmaps or strategic marketing plans; and non- public materials relating to the Software.
Exclusions to Confidential Information:
Confidential Information does not include information that: (a) was in the public domain at the time of Discloser's communication thereof to Recipient, (b) becomes part of the public domain after the time of disclosure, through no improper action of Recipient; (c) was in Recipient's possession free of any obligation of confidence at the time of Discloser's communication thereof to Recipient; (d) can be shown by documentation to have been independently developed by the Recipient without the use of or reference to any Confidential Information; (e) is not treated as confidential by Discloser; or (f) is approved for release by Discloser in writing. Recipient shall use any Confidential Information received (or derivatives thereof) solely for the purpose of performing its obligations under this EULA.
Obligations to Confidential Information:
Recipient shall not disclose or permit any non-Affiliate party access to any Confidential Information, except Recipient’s officers, directors, employees, contractors, representatives, or agents on a need to know basis and where all such officers, directors, employees, contractors, representatives, or agents have confidentiality obligations at least as restrictive as those set forth in this Section. Recipient agrees to use reasonable efforts to protect the confidential or proprietary nature of such Confidential Information (and any derivatives thereof), using at least the same degree of care it utilizes for the protection of its own strictly confidential and proprietary information. The obligations under this EULA will continue: (i) with respect to Confidential Information (and/or derivatives thereof) that does not constitute a trade secret, in perpetuity after the termination of this EULA; and (ii) for any Confidential Information (and/or derivatives thereof) that constitutes a trade secret, for so long as such information remains a trade secret under applicable law. Notwithstanding the foregoing, in the event disclosure is required by court, government order, or law (such as state open records or freedom of information acts), Recipient shall promptly notify Discloser of such order or requested disclosure so that it may seek a protective order or other appropriate remedy and only disclose such Confidential Information to the extent required.
Return/ Deletion of Confidential Information:
All Discloser Confidential Information and derivatives thereof shall remain the exclusive property of Discloser and will be deleted or returned to Discloser within ten (10) days following the termination of this EULA. Without limiting the foregoing or the License Restrictions, Licensee shall not disclose or display any Confidential Information of the licensor, including the Software, to any Competitor of licensor.
18. TECHNICAL SUPPORT:
Licensor shall provide technical support as listed in Annexure A hereto for twelve (12) months from the date of Mandatory activation. Upon expiry of initial twelve months from the date of purchase of license, Licensee may opt to avail Maintenance and Technical Support, which will be subject to the then current pricing and terms and conditions for such services.
Exclusions to Technical Support: Licensor’s Technical Support do not include the rectification of errors, defects or problems caused or contributed to by:
- default or negligence of Licensee.
- improper or unauthorized use of the Software.
- any modifications or alterations of the Software other than as approved by the licensor or by any person other than the licensor.
- any failure by Licensee to comply with the Documentation.
- any failure by Licensee to download and install Updates made available on the licensor’s Website.
- any failure by Licensee to comply with any reasonable guidelines or instructions provided by the licensor.
- any fault, defect, omission or error in any data, software or equipment not supplied by the licensor.
- any failure arising out of any network (including the internet) or communications; or
- use of the Software with any software or equipment not approved or recommended by the licensor, or in a manner or for a purpose in breach of this EULA or not reasonably contemplated by this EULA.
The licensor reserves the right to charge Licensee additional fees (at its then current rates) for the rectification of any errors, defects or problems caused or contributed to by any of the reasons listed above.
Licensor shall have no obligation to provide Software, Software versions, features, functionalities and/or may cease providing related support and maintenance in the case of or with respect to any incident that is in whole or in part due to, caused by, or resulting from any changes or variations in any third party support which is not within the direct control of the Licensor including but not limited to the third party software and maintenance support, hardware maintenance, platform limitations affecting functionality such as OEM and operating systems and others.
In the event of any material change due to the third party support, Licensor will use all its commercially reasonable efforts, to restore the affected services as soon as possible and upon Licensor’s failure to do so, the Licensee’s sole remedy shall be to terminate the Agreement as contemplated in this Agreement.
20. LIMITED WARRANTY:
Licensor hereby warrants that to its knowledge it has the necessary rights and title to license the Software to the Licensee.
Where separately agreed, licensee may purchase software license and other offerings hereunder from licensors’ authorized reseller “(Reseller)”. In which all payments will be to the Reseller under the terms agreed between the licensee and the reseller. Where licensee purchases any offerings hereunder through a Reseller, any credits, refunds set forth herein shall not apply to the extent the licensee has paid the relevant fees directly to the Reseller. Should licensee and Reseller
terminate their business relationship; in the event the Reseller files for bankruptcy protection; sells all or substantially all of its assets; ceases to do business in the ordinary course; or if the Licensee otherwise desires to do so, Licensee may purchase any offering as set forth in this EULA directly from licensor. In the event the licensee purchases the software or licensors’ other offerings through a Reseller and such Reseller has granted licensee rights not granted in this EULA, licensees’ sole course of action in the event of a dispute regarding those rights shall be against the Reseller.
23. DISCLAIMER OF WARRANTIES:
24. INFRINGEMENT INDEMNITY:
26. NO LIABILITY:
Licensor shall have no liability for any claim of infringement based on (i) Software which has been modified by parties other than Licensor or parties not authorized by Licensor; (ii) Licensee’s use of the Software in combination with data where use with such data gave rise to the infringement claim; or (iii) Licensee’s use of the Software with non-Licensor software or hardware, where use with such other software or hardware gave rise to the infringement claim and (iv) Licensee’s breach of this Agreement and the Documentation.
Remedies. If in Licensor’s opinion, the Software becomes or is likely to become, the subject of a claim of infringement, Licensor may, at its option, (i) obtain the right for Licensor to continue using the Software; (ii) replace or modify the Software so it is no longer infringing; or (iii) if (i) and (ii) are not commercially reasonable and feasible, terminate the license for the Software. Upon such termination of the license and Licensee’s return of the Software, Licensor will refund to Licensee, as Licensee’s sole remedy for such license termination, all license fees paid by Licensee for the terminated license. This Section states the entire liability of the Licensor with respect to any claim of infringement regarding the Software.
Injunctive Relief: Nothing in this EULA limits either party’s ability to seek equitable relief.
27. LIMITATION OF LIABILITY:
THE DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT ARE FUNDAMENTAL PARTS OF THE BASIS OF LICENSOR’S LICENSE HEREUNDER, AND LICENSEE ACKNOWLEDGES THAT LICENSOR WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE TO LICENSEE WITHOUT SUCH LIMITATIONS. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY HEREIN.AUSTRALIAN CONSUMERS: IF YOU ARE A “CONSUMER” UNDER THE AUSTRALIAN CONSUMER LAW NOTHING IN THESE TERMS INTENDED TO AFFECT THOSE RIGHTS.
NOTHING IN THIS EULA EXCLUDES, RESTRICTS OR MODIFIES ANY RIGHT OR REMEDY, OR ANY GUARANTEE, WARRANTY OR OTHER TERM IMPLIED OR IMPOSED BY LEGISLATION WHICH CANNOT BE LAWFULLY EXCLUDED OR LIMITED (EACH A NON-EXCLUDABLE TERM). SUCH LEGISLATION INCLUDES THE AUSTRALIAN CONSUMER LAW WHICH CONTAINS GUARANTEES THAT PROTECT THE PURCHASERS OF GOODS OR SERVICES IN CERTAIN CIRCUMSTANCES.
28. TERM AND TERMINATION:
The agreement shall commence on the date the Licensee agrees to the terms of this Agreement by clicking the “I Accept” button and download/install the Software and continues until the perpetual or subscription licenses granted in accordance with the Agreement have expired or been terminated. Wherein the Licensee uses the software for a free trial period and does not purchase a perpetual or subscription license before the end of that period, Agreement will terminate at the end of free trial period. If You purchase an auto-renewing subscription, Your purchase constitutes Your agreement to auto-renewal for the same term as initially purchased. Further, Fees may increase, and discounts may not apply to renewals, if any.
Termination by Licensee: Licensee may terminate this EULA at any time by giving 30 days written notice to licensor and complying with the conditions of clause.
Termination by Licensor: Licensor may terminate this EULA immediately by giving written notice to Licensee if:
- Licensee fails to pay any fees which are due and payable under this EULA within 30 days of serving the notice;
- Licensee fails to comply with any term or condition of this EULA;
- Licensee becomes bankrupt or insolvent; or
- Licensor is required to do so by law (e.g. where the provision of the Software or Support and Maintenance to Licensee is or becomes unlawful).
Consequences of Termination: Upon termination or expiry of this EULA for any reason the Licensee must:
- immediately pay any outstanding amounts owed to licensor under this EULA and with respect to any License under a Subscription Package, all remaining subscription fee installments over the subscription period;
- remove the Software from each server and each computer or terminal on which it is installed;
- cease all use or exploitation of any intellectual property or confidential information of licensor relating to the Software; and
- deliver up or destroy (at licensors’ option) all copies, full or partial, of the Software and Documentation that are in the possession of Licensee.
Not withstanding anything provided foregoing, termination of this Agreement will not limit Licensor rights or remedies at law or in equity in case of breach by You (during the term of this Agreement) of any of Your obligations as provided in this EULA.
Suspension of Services: In addition to the termination rights, Licensor reserves the right to suspend Licensee’s access to a Service if it determines in its sole discretion, that (i) payment is not received within 30 days from the date on which payment is due; (ii) Licensee’s or its Authorised users’ use of the Services are in breach of this Agreement and not cured as required in this Agreement; (iii) Licensee failed to timely address Licensor’s request to take action pursuant to notification issued by Licensor; (iv) suspension is required pursuant to a subpoena, court order or other legal process. Licensor agrees to notify Licensee of any such suspension and Licensee will remain responsible for all fees incurred before or during such suspension. Licensor reserves the right, in its discretion, to impose reasonable fees to restore archived data upon Licensee’s request from delinquent accounts.
29. Survival clause:
Expiry or termination of this EULA for any reason does not affect the rights and obligations of either party arising prior to termination. Clauses under heading (i) Definitions (ii) Ownership (iii) Third Party Software (iv) Restrictions on Use (v) Confidentiality (vi) Limitation of Liability Disclaimer of Warranty (viii) Consequences of Termination (ix) General survive the termination or expiry of this EULA for any reason.
31. DATA PROTECTION:
As the performance of the Agreement and delivery of the Services implies the delivery of the personal data, Licensor shall comply with the applicable data protection laws and regulations. For the avoidance of doubt:
- Licensor shall notify the Licensee of any data breaches involving the Licensee data it process on behalf of the Licensee as soon as reasonably practicable;
- Licensor shall provide support to Licensee at their request to assess the impact of its services on the Licensee’s privacy (for example, through assisting the Licensee with a Data Protection Impact Assessment);
- Licensor shall provide support to Licensee in responding to requests from data subjects to exercise their rights under the EU General Data Protection Regulation (GDPR) and California Consumer Protection Act (CCPA).
Data Security: You agree that the Licensor will process certain information which may include email address, Internet protocol address, device name etc about You and Your authorized users use of the Software in accordance with its Privacy Notice.
Each Party shall comply with its respective obligations under applicable data protection legislation and will maintain appropriate administrative, physical, technical and organizational measures that provide an appropriate level of security for Confidential Information and Personal Data including
Licensee Data. When Licensor processes Personal Data on Your behalf to provide the Software, You expressly agree that You are the data controller (and Licensor, the data processor) and shall determine the purpose and manner in which such Personal Data is, or will be processed.
Licensor is committed to maintaining the privacy and security of your personal information. Your use of the Software may result in the processing of your personal information. Processing of your personal information includes the collection, use, processing, transfer, storage and sharing information about You in accordance with Licensor’s Privacy Notice, which is available at https://www.42gears.com/privacy- policy/. By accepting this Agreement, You acknowledge that You hereby agree and consent to the terms and conditions of our Privacy Notice.
33. SOFTWARE OPERATION DISCLAIMER:
You are aware that the function of the Software provided by Licensor hereunder is to configure which applications and device features can be used by the Authorized User in Android based devices. The use of Software may cause the emergency call/emergency dial feature to cease to operate in the Devices on which the Software is installed. 42Gears is not aware of Licensee’s intended use of the Software and does not make any representation that the Software will meet the requirements of the Licensee. Licensee alone is responsible to determine the Software’s suitability for Licensee’s intended usage. Licensee is expressly forbidden from using any part of the Software in life saving or life critical applications or high risk or strict liability activity which reasonably be expected to result in a physical injury, or in loss of property, or loss of life; without the expressed written permission from Licensor. Licensor will not be responsible for any excessive data usage due to any user action or application error in the Software. Notwithstanding anything to the contrary in this Agreement, the Licensor will not be liable for any damages (direct, indirect or consequential) arising from device malfunction caused by the operation of the Software. Licensee acknowledges and agrees that it has not based its purchasing decision on the future availability of any new products and/or additional features, components or versions of the Products, nor on any oral or written comments made by Licensor regarding future functionality or features.
Unless You provide us with written notice to the contrary or of any reasonable restrictions or requirements, You agree that we may use Your’ trademarks, trade name and logo for the purpose of listing in our list of customers, digital, online and printed marketing materials (including our website). Licensee also permits Licensor to bring out press releases and will be open to provide endorsement quotes for Licensor’s marketing purposes, provided Licensor obtains prior written approval on such press releases and quotes.
The Licensee acknowledges and agrees that the Licensor offers and licenses the Software online in accordance with Licensor’s applicable laws. The Licensee warrants that the Licensee will comply with Licensee’s applicable laws in downloading and/or using the Software pursuant to this Agreement. Licensee further warrants that it will not use the Software (i) either in its entirety or (ii) any features/functionalities of the Software, if the Software or any feature/functionality of the Software is not in compliance with Licensee’s applicable laws and Licensee will indemnify Licensor, its affiliates and their directors, officers, employees and agents from any third party claims, losses, damages or penalties (including reasonable attorney fees) arising from Licensee’s breach of this warranty.
36. EULA APPLIES TO UPDATES:
Licensor’s authorized distributors and resellers do not have the right to make modifications to this Agreement or to make any additional representations, commitments, or warranties binding on Licensor.
37. AUTHORIZED DISTRIBUTORS AND RESELLERS:
Licensor’s authorized distributors and resellers do not have the right to make modifications to this Agreement or to make any additional representations, commitments, or warranties binding on Licensor.
38. TECHNOLOGY EXPORT:
Licensee shall not: (a) permit any third party to access or use the Software in violation of any U.S. law or regulation; or (b) export the Software or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Licensee shall not permit any third party to access or use the Software in, or export it to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
In connection with this Agreement, will comply with all applicable import, re-import, export, and re- export control laws and regulations. For clarity, Licensee is solely responsible for compliance related to the manner in which it chooses to use the Software.
- Entire Agreement Clause: This EULA constitutes the entire agreement between Licensor and the Licensee in relation to its subject matter and any prior representations, statement or undertaking howsoever made, are expressly excluded. Unless the Parties otherwise agree, all use of the Software and Support and maintenance services are subject to the terms of this Agreement. Licensor doesn't agree to any other terms, including without limitation any terms on Licensee’s purchase orders or invoices or similar documents.
- Amendments: Licensor reserves the right to modify the terms of this EULA from time to time and any such modifications will take effect once published on licensor’s Website or otherwise notified to Licensee. Subject thereto, no amendment or modification to this EULA is valid unless it is in writing and signed by an authorized representative of the licensor.
- Severance: If any provision of this EULA is declared illegal or unenforceable, such provision is to be severed from this EULA and all other provisions of this EULA will remain in full force and effect.
- Waiver: Any delay or failure by the licensor in enforcing its rights under this EULA is not to be construed as a waiver of those rights.
- Assignment: The Licensee may not assign, sub-contract or otherwise transfer any of the Licensee’s rights or obligations under this EULA unless the licensor has given its prior written consent.
- Force Majeure: Except for payment obligations, neither party shall be liable for any delays or other non-performance resulting from circumstances or causes beyond its reasonable control that are not due to the negligence or misconduct of the party claiming relief under this section, including, without limitation, fire or other casualty, act of God including Pandemic situations, war, terrorism, or other violence, any law, order or requirement of any governmental agency or authority or other causes beyond the reasonable control of such party, provided that such party has informed the other party of such force majeure event promptly upon the occurrence thereof (including a reasonable estimate of the additional time required for performance to the extent determinable) and such party uses reasonable commercial efforts to effect the required performance as soon as reasonably practicable.
- Dispute: A party to this agreement claiming that a dispute has arisen under or in relation to this agreement must give written notice to the other party specifying the nature of the dispute and the parties’ representatives must endeavor in good faith to resolve the dispute expeditiously prior to commencing any formal proceedings.
- Governing Law: If You are a resident of the United States or Canada, this Agreement shall be governed by and interpreted in all respects by the laws of the State of Delaware, without reference to its conflicts of laws principles and You agree to submit to the exclusive jurisdiction of the courts of the Delaware. If you are a resident of India, this Agreement shall be governed by and interpreted in all respects by the laws of the Republic of India without reference to its conflict of laws’ principles and you agree to submit to the personal jurisdiction of the courts in Bengaluru, India. If you are a resident of the United Kingdom or European Union, this Agreement shall be governed by and interpreted in all respects by the laws of England and Wales without reference to conflict of laws' principles and you agree to submit to the exclusive jurisdiction of the courts in England and Wales, United Kingdom. If you are a resident of any other country, this Agreement shall be governed by and interpreted in all respects by the laws of the Republic of India without reference to conflict of laws' principles and you agree to submit to the personal jurisdiction of the courts in Bengaluru, India.
Upon payment of applicable fees for a valid license, Licensor will provide technical support as follows:
- Nature of support: Assistance provided for installation, maintenance and software upgrades. Bug fixing is not included as a part of technical support.
- How to request for technical support:
- Submit a Ticket: https://www.42gears.com/submit-a-ticket/
- Live Chat: https://www.42gears.com/chat/
- Phone: Worldwide: +1-424-284-2574 | India: 1800-419-7675
- Knowledge Base: https://knowledgebase.42gears.com/
- Availability: 24/7
Last Updated: February 18, 2022