THIS AGREEMENT APPLIES TO:
(1) ALL SUBSCRIPTIONS FOR 42GEARS’ HOSTED SOFTWARE AS A SERVICE (SAAS) SOLUTIONS
(2) ANY OTHER RELATED SERVICES THAT 42GEARS MAY PROVIDE TO YOU IN CONNECTION WITH SUCH SAAS SOLUTION.
PLEASE READ THE AGREEMENT CAREFULLY BEFORE CONTINUING YOUR SUBSCRIPTION REGISTRATION. BY CLICKING THE "I ACCEPT" BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT AS SET FORTH IN ANY ONLINE OR PRINTED ORDER FORM REFERENCING THIS AGREEMENT, YOU AND ANY COMPANY YOU REPRESENT AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, YOU ARE REPRESENTING TO US THAT YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY TO THIS AGREEMENT, AND THE TERM "YOU" SHALL REFER TO YOUR COMPANY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST CHOOSE THE "CANCEL" BUTTON AND YOU SHALL NOT BE PERMITTED TO USE THE SOFTWARE SERVICE.
“Authorized Users” means you, your employees or third party individuals that are accessing the Software on your behalf. Third-Party users may Use the Software/(s) subject to Confidentiality obligations in this Agreement.“Documentation” means the user guides or any other technical documentation published on the website https://www.42gears.com/documentation/ about the applicable Product that is provided by 42Gears to Customer together with access to the Product.
Quote: means a written quotation of 42Gears’ offerings provided to the Customer by 42Gears, which is accepted by Customer and considered an “order” by signing and returning quotation to 42Gears.
Relationship Data: any personal information collected by the 42Gears during the activation and maintenance of Customer’s account. It may include names and other details of Customer involved in maintaining or using the software and/or Hosted service.
“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 42Gears 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 42Gears at its discretion from time to time.
Term: means the term during which the Customer is granted the access rights to use the product, the term shall commence when 42Gears delivers to Customer the relevant user credentials to access and use the Product.
Third Party Software: means software which is created or developed by a party other than the 42Gears and includes open source software.
Website: means the website nominated from 42Gears Mobility Systems Private Limited from time to time, currently at www.42gears.com
2. Trial Version:
3. Grant of Access and Right of Use:
To be responsible for providing and maintaining the required terminal equipment, the data line and shall ensure that Customer’s configuration and technical condition comply with the current requirements of 42Gears as stated in 42Gears’s website www.42gears.com (check technical facts for each product).
To name the users and contact partners at the signing of the agreement and to protect his or her account and customer password from unauthorized access and to not disclose it to third parties.
4. Restrictions on Use:
6. System requirements:
7. Protection and Security:
8. Ownership and Reservation of Rights:
(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.
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.
In the course of performance of this Agreement, 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 42Gearss’ 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 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.
42Gears’s warranty. 42Gears hereby warrants that to its knowledge it has the necessary rights and title to provide the Software to theCustomer.
Customer’s warranty. Customer hereby warrants that it has the necessary rights to share and upload all Customer data shared with the 42Gears or uploaded into the Software. Customer data shall mean any materials or data provided by Customer to 42Gears pursuant to this Agreement, including information or data that is uploaded into the Software. 42Gears may store Customer data solely for storage, retrieval, backup purposes.
13.Disclaimer of Warranty:
Customer Obligations: 42Gears shall have no liability under this Section unless:
a) Customer notifies 42Gears in writing immediately after it becomes aware of a claim or the possibility thereof; andb) 42Gears has sole control of the settlement, compromise, negotiation, and defense of any such action; andc) Customer cooperates, in good faith, in the defense of any such legal action.Remedies: Should the Software become, or in 42Gears’s opinion is likely to become, the subject of a claim of infringement, 42Gears may, at its option, (i) obtain the right for Customer to continue using the Software; (ii) replace or modify the Software so it is no longer infringing; or (ii) if neither of the foregoing options is commercially reasonable, terminate the license for the Software. Upon such termination and Customer’s return of the Software, 42Gears will refund to Customer, as Customer’s sole remedy for such termination, all fees paid by Customer for the such Software, less an amount equal to the fees for each month or any portion thereof which has elapsed from the Term of such Software.
THIS SECTION STATES THE ENTIRE LIABILITY OF 42GEARS WITH RESPECT TO ANY CLAIM OF INFRINGEMENT REGARDING THE SOFTWARE.
15.Maintenance and Support:
accordance with Appendix A to this Agreement.Exclusions to Maintenance and Support: 42Gears’s Maintenance and Support do not include the rectification of errors, defects or problems caused or contributed to by:1. default or negligence ofCustomer;
2. improper or unauthorized use of the Software;
3. any modifications or alterations of the Software other than as approved by the 42Gears or by any person other than the42Gears;
4. any failure by Customer to comply with the Documentation;
5. any failure by Customer to download and install Updates made available on the 42Gears’s Website;
6. any failure by Customer to comply with any reasonable guidelines or instructions provided by the 42Gears;
7. any fault, defect, omission or error in any data, software or equipment not supplied by the 42Gears;
8. any failure arising out of any network (including the internet)or communications; or 9. use of the Software with any software or equipment not approved or recommended by the 42Gears, or in a manner or for a purpose in breach of this Agreement or not reasonably contemplated by this Agreement.
42Gears reserves the right to charge Customer 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.
16. LIMITATION OFLIABILITY
SUCH DAMAGES ARE FORESEEABLE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.Aggregate Liability: NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, 42GEARS'S AGGREGATE LIABILITY PURSUANT TO THIS AGREEMENT, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION OR OTHERWISE SHALL, IN RESPECT OF A SINGLE OCCURRENCE OR A SERIES OF OCCURRENCES (ALL CLAIMS), IN NO CIRCUMSTANCES EXCEED THE FEES PAID BY CUSTOMER TO 42GEARS, FOR THE SOFTWARE, OVER THE TWELVE (12) MONTH PERIOD IMMEDIATEL Y PRECEDING THE RECEIPT BY 42GEARS OF THE RELEVANT NOTIFICATION OF CLAIM AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
17. Term and Termination:
before the end of that period, Agreement will terminate at the end of the free trial period. Termination by Customer: Customer may terminate this Agreement at any time by giving 30 days written notice to 42Gears and complying with the conditions of clause. Termination by 42Gears: 42Gears may terminate this Agreement immediately by giving written notice to Customer if:
(a) Customer fails to pay any fees which are due and payable under this Agreement within 15 days from the due date of payment;
(b) Customer fails to comply with any term or condition of this AGREEMENT; (c) Customer becomes bankrupt or insolvent; or
(d) 42Gears is required to do so by law (e.g. where the provision of the Software or Support and Maintenance to Customer is or becomes unlawful).
Consequences of Termination: Upon termination or expiry of this Agreement for any reason the Customer must:
(a) immediately pay any outstanding amounts owed to 42Gears under thisAgreement (b) remove the Software from each server and each computer or terminal on which it is installed;
(c) cease all use or exploitation of any intellectual property or confidential information of 42Gears relating to the Software;and
(d) deliver up or destroy (at 42Gearss’ option) all copies of the Software and Documentation that are in the possession of Customer.
19. Data Protection:
i. 42Gears shall notify the Customer of any data breaches involving the data it process on behalf of the Customer as soon as reasonably practical;
ii. 42Gears shall provide support to Customer at their request to assess the impact of its services on the Customer’s privacy (for example, through assisting the Customer with a Data Protection ImpactAssessment);
iii. 42Gears shall provide support to Customer in responding to requests from data subjects to exercise their rights under the EU General Data Protection Regulation (GDPR).
20. Data Security:
22. Software Operation Disclaimer:
provided by 42Gears hereunder is to configure which applications and device features can be used by the Authorized User in Android based tablets and smartphones. The use of Software may cause the emergency call/emergency dial feature cease to operate in the Devices on which the Software is installed. 42Gears is not aware of Customer’s intended use of the Software and does not make any representation that the Software will meet the requirements of the Customer. Customer alone is responsible to determine the Software’s suitability for Customer’s intended usage. Customer is expressly forbidden from using any part of the Software in life saving or life critical applications without the expressed written permission from 42Gears. 42Gears 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, 42Gears will not be liable for any damages (direct, indirect or consequential) arising from device malfunction caused by the operation of the Software.
23. Our Relationship:
25. Force Majeure: 42Gears shall not be liable to Customer for any delay or failure of 42Gears to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of 42Gears. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delay by the Customer in providing required resources or support or performing any other requirements hereunder theAgreement.
26. Dispute Resolution:
27. Governing Laws and Jurisdiction:
Failure by 42Gears to insist on strict performance or to exercise a right when entitled does not prevent 42Gears from doing so at a later time, either in relation to that default or a later one.
29. Survival clause:
32. Entire Agreement:
Last Updated: April 30, 2021