THIS MOBILE THREAT DEFENSE LICENSE AGREEMENT (THE "LICENSE AGREEMENT" OR THE "AGREEMENT") IS BETWEEN 42GEARS MOBILITY SYSTEMS PRIVATE LIMITED ("42GEARS/LICENSOR") AND THE ENTITY AGREEING TO THESE TERMS ("CUSTOMER/LICENSEE"). THIS AGREEMENT GOVERNS THE SUBSCRIPTION TO AND USE OF 42GEARS MOBILE ENDPOINT SECURITY SERVICES (THE "SERVICES”). 

READ THE TERMS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE USING THE SERVICES. YOU ARE REQUIRED TO ACCEPT THE FOLLOWING LICENSE AGREEMENT AS A CONDITION BEFORE USING MTD SOLUTION. AS THE CUSTOMER, YOU AGREE TO THIS AGREEMENT BY CLICKING INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, BY EXECUTING A DOCUMENT THAT REFERENCES THIS AGREEMENT, OR BY YOUR CONTINUED USE OF THE SERVICES. IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN 42GEARS IS UNWILLING TO LICENSE THE SERVICES TO YOU, AND YOU SHALL MAKE NO FURTHER USE OF THE SERVICES. BY ACCEPTING THIS AGREEMENT, YOU CONFIRM THAT YOU HAVE REVIEWED THE AGREEMENT ON BEHALF OF CUSTOMER AND YOU ARE WARRANTING THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON BEHALF OF CUSTOMER. 

1. Definitions

1. Authorized Users: means any third-party individuals that are accessing the Software on behalf of Licensee including but not limited to the employees of Licensee
2. “Services/Software” means MTD(Mobile Threat Defense) services to maximize the protection against cyber security threats such as malware, phishing etc. to help improve the safety and privacy of endpoints.
3. Subscription Term” means the period starting on the Service start date as stated in the Order and continuing for the period specified therein

2. LICENSE AND MAINTENANCE

2.1 Grant of license 

Provided that the Agreement entered into between 42Gears and the Licensee remains in force, 42Gears hereby grants to the Licensee and its Authorized users a non-exclusive, non-sublicensable and non-transferable right to access and use the MTD Solution for the Licensee’s own internal business purposes only. 

The license granted herein shall remain in force for the same duration as that of the subscription purchased. It shall terminate automatically upon termination of the Agreement, for whatever the reason. The availability of the MTD Solution may be interrupted notably in case of maintenance operations of the MTD Solution or in case of event (including but not limited to problems with the Authorized Users’ hardware).

In addition, at any time, 42Gears can: 

a) Suspend, interrupt or limit access to all or part of the MTD Solution;
b) Remove any information that could disrupt operation of the MTD Solution or contravene national or international laws or rules;
c) Suspend or limit access to the MTD Solution to make updates.

2.2 Restrictions of use 

42Gears reserves all rights not explicitly granted to the Licensee by these T&Cs. The Licensee shall not, without limitation, directly or indirectly: 

a) Modify, duplicate, reproduce or copy the MTD Solution or its associated documentation; Rent, resell, sell, assign, sublicense or otherwise transfer the MTD Solution or its associated documentation;
b) Attempt to discover or have access to, by decompiling, disassembling, reverse engineering or otherwise, the source code of the MTD Solution, for any purpose including for interoperability needs; c) In any case, use the MTD Solution except as authorized by these T&Cs.

3. INTELLECTUAL PROPERTY RIGHTS

The Licensee acknowledges that all trademarks, distinctive brand elements, domain names, photos, texts, comments, illustrations, animated or non-animated images, video sequences, sounds, as well as any computer elements that could be used to make the MTD Solution work and, more generally, all elements reproduced or used in the MTD Solution are protected by applicable intellectual property laws. 

These T&Cs do not provide the Licensee with title or ownership of the MTD Solution, but only a revocable license of restricted use as set forth above. 

The Licensee agrees not to directly or indirectly infringe any rights such as reproduction, representation, use or adaptation, in any form, of all or parts of these elements, including computer applications, without prior written consent.

4. LINKS TO OTHER SITES

The implementation by the Licensee of any hyperlink from any site and/or application and any device, to all or part of the MTD Solution is strictly prohibited.
In any case, any link will have to be deleted without delay.
It is up to the Licensee to make all necessary or appropriate checks before proceeding with any transaction with any third parties.

5. CUSTOMER WARRANTY

As a condition to Customer’ and its Authorized Users use of the Services, Customer represents, warrants and covenants that Customer will not use the Services for any improper or illegal purposes, including but not limited to: 

1. Infringement of the intellectual property or proprietary rights, or rights of publicity of any third party;
2. Violation of local, state, and/or federal laws, regulations, or ordinances, including but not limited to all applicable export laws and the U.S. Foreign Corrupt Practices Act and similar foreign anti bribery laws;
3. Compromising information and data security or confidentiality;
4. Integrating information that has been obtained in violation of any contractual agreement or local, state, or federal law, regulation, or ordinance; and/or
5. Violation of privacy or constitutional rights of any End User, or any other individuals or entities. Customer, not 42Gears, remains solely responsible for all information or material in any form or format that Customer imports, uses, publishes, or otherwise disseminates using, or in connection with, the Services (“Content”).

Customer acknowledges that all Content that Customer accesses through use of the Services is accessed at Customer’s own risk and Customer will be solely responsible for any damage or liability to any party resulting from such access.

6. FEES AND PAYMENT:

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 are 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.

7. CONFIDENTIALITY

Each party undertakes not to disclose to any third party information that is exchanged between the parties, provided that such information is: (i) clearly marked as confidential at the time of disclosure by the disclosing party, or (ii) if disclosed orally, identified as confidential at the time of disclosure, and summarized in writing and transmitted to the receiving party ("Confidential Information"). Each party agrees that it shall use the same degree of care that it utilizes to protect its own confidential information of a similar nature, but in no event less than reasonable care, to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. The confidentiality obligation in this Section does not apply to such information that (a) was lawfully in the receiving party’s possession before receipt from the disclosing party; (b) is or becomes a matter of public knowledge through no fault of the receiving party; or (c) was independently developed or discovered by the receiving party without the benefit of any Confidential Information of the disclosing party. Furthermore, Confidential Information of the other party may be disclosed insofar as such disclosure is necessary to allow a party to comply with applicable law, with a decision by a court of law or to comply with requests from government agencies that such party determines require disclosure, but then only after first notifying the other party of the required disclosure, unless such notification is prohibited. 

Customers shall promptly notify 42Gears of any actual or suspected misuse or unauthorized disclosure of 42Gears Confidential Information. Customer is responsible and shall be liable for any breaches of this Section and any disclosure or misuse of any Confidential Information by Customer’s employees or agents (or any other person or entity to which Customer is permitted to disclose Confidential Information pursuant to this Section). The foregoing confidentiality obligation survives termination of this Agreement for a period of five (5) years; provided that Customer’s obligations hereunder shall survive and continue in perpetuity after termination with respect to any Confidential Information that is a trade secret under applicable law. 

8. DISCLAIMER

a. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, 42GEARS MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EITHER PARTY HERETO, ITS AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES SET FORTH IN THIS AGREEMENT. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, 42GEARS DOES NOT WARRANT THAT THE SERVICES WILL MEET ALL REQUIREMENTS OF CUSTOMER OR ANY AUTHORIZED USERS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS IN THE SERVICES WILL BE CORRECTED. FURTHER, 42GEARS IS NOT RESPONSIBLE FOR ANY DEFECT OR ERROR RESULTING FROM THE MODIFICATION, MISUSE OR DAMAGE OF ANY OF THE SERVICES NOT DELIVERED BY 42GEARS. 42GEARS DOES NOT WARRANT AND SHALL HAVE NO LIABILITY WITH RESPECT TO THIRD PARTY SOFTWARE OR OTHER NON-42GEARS SERVICES.

b. Anyone using, testing, or evaluating 42Gears bears all risk to the quality and performance of Software. In no event shall 42Gears be liable for any damages of any kind, including, without limitation, direct or indirect damages arising out of the use, performance, or delivery of Software, even if 42Gears has been advised of the existence or possibility of such damages.

SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO THEM. 

IN NO CASE SHALL 42GEARS LIABILITY EXCEED THE PURCHASE PRICE PAID BY LICENSEE TO 42GEARS. The disclaimers and limitations set forth above will apply regardless of whether Licensee accept to use, evaluate, or test 42Gears Software. 

We strongly recommend that Licensee back up their data frequently. Licensee shall at all times be under a duty to mitigate their loss. 

c. IMPORTANT NOTICE TO USERS

THIS SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. THIS SOFTWARE IS NOT FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, OR COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL. 

42Gears does not warrant that Software will be uninterrupted or error free or that the errors will be corrected. 42Gears does not warrant that Software will meet your requirements. 

d. No other obligations. This Agreement creates no obligations on the part of the Licensor other than as specifically set forth herein.

9. THIRD PARTY SOFTWARE:

The Software may incorporate 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” basis and 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. 

Any third party software use will terminate when this Agreement terminates, when the Licensee terminates, or when the Software is no longer being used by the Licensee

10. TECHNICAL SUPPORT:

42Gears shall provide technical support hereto for twelve (12). 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. 

From time to time, 42Gears performs scheduled maintenance to update the servers, software, and other technology that are used to provide the Service and will use commercially reasonable efforts to provide prior notice of such scheduled maintenance. Licensee acknowledges that, in certain situations, 42Gears may need to perform emergency maintenance of the Service without providing prior notice. 

Exclusions to Technical Support: Licensor’s Technical Support do not include the rectification of errors, defects or problems caused or contributed to by: 

a) default or negligence of Licensee.
b) improper or unauthorized use of the Software.
c) any modifications or alterations of the Software other than as approved by the licensor or by any person other than the licensor.
d) any failure by Licensee to comply with the Documentation.
e) any failure by Licensee to download and install Updates made available on the licensor’s Website.
f) any failure by Licensee to comply with any reasonable guidelines or instructions provided by the
g) any fault, defect, omission or error in any data, software or equipment not supplied by the licensor. h) any failure arising out of any network (including the internet) or communications; or
i) 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 Agreement or not reasonably contemplated by this Agreement.

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.

11. RESELLERS:

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. 

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 Agreement 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 Agreement, licensees’ sole course of action in the event of a dispute regarding those rights shall be against the Reseller. 42Gears has no liability whatsoever for any acts or omissions of the Reseller. 

Further, all the terms and conditions provided herein are applicable to the Authorised users who shall be given an access to the Software by the Customer.

12. Limitations to the Services

The Software is provided for general information purposes only. 42Gears do not offer advice on which Licensee should rely. While we use reasonable endeavors to provide the Software, as with any other cyber security solution, there are false positive detections and false negative detections and sometimes the features will malfunction and we are not liable for the same. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of information obtained from the Software. Although we make reasonable efforts to update the information provided by the Software, we make no representations, warranties or guarantees, whether express or implied, that such information is accurate, complete or up to date. 

There may be many possible causes for misidentifications and anomalies like this and they should be carefully investigated on a case by case basis by a specialist before taking responsive action. 42Gears disclaims all liability of any kind for such a misidentification and you use this Software with full knowledge of this disclaimer. 

13. Indemnification

Customer shall indemnify, defend and hold harmless 42Gears, its licensors, distributors, suppliers (collectively the "Indemnitees") against (i) any and all costs, charges, claims, damages, liabilities incurred and/or proceedings taken against any of the Indemnitees, including without limitation outside legal fees, resulting from illegal conduct and/or violation of rights of third parties, and/or (ii) any damage that Customer may cause through your use of the Solution.

14. Data Protection

If Customer's use of the Service requires 42Gears to process personal data falling within the scope of EU Regulation 2016/679 (the "GDPR"), the GDPR as it forms part of United Kingdom law (the "UK GDPR"), the Swiss Federal Data Protection Act of 19 June 1992, or other relevant US data protection laws that may be applicable, the Data Processing Addendum ("DPA") set out at https://www.42gears.com/trust-center/legal/data-processing-addendum-agreement/ shall apply. The DPA shall hereby be incorporated into this Agreement by reference. In the event of any conflict between the terms of the DPA and this Agreement as they relate to End User Data, the DPA shall prevail to the extent of such conflict.

15. Term

This Agreement will remain in effect for the Subscription Term specified as set forth in the Order or until the Agreement is terminated as provided below.

16. Termination.

The Agreement shall commence on the date the Licensee agrees to the terms of this Agreement by clicking the “I Accept” button and downloading/installing the Software and continuing until the subscription licenses granted in accordance with the Agreement have expired or been terminated. 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 Licensor: Licensor may terminate immediately by giving written notice to Licensee if: Licensee fails to pay any fees which are due and payable within 30 days of serving the notice; Licensee fails to comply with any term or condition of this Agreement;
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 Agreement for any reason the Licensee must: 

a) immediately pay any outstanding amounts owed to licensor under this Agreement and with respect to any License under a Subscription Package, all remaining subscription fee installments over the subscription period;
b) 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
c) deliver up or destroy (at licensors’ option) all copies, full or partial, of the Software and Documentation that are in the possession of Licensee.

Notwithstanding anything provided foregoing, termination of this Agreement will not limit Licensor rights or remedies at law or in equity in case of breach by Licensee (during the term of this Agreement) of any of Your obligations as provided in this Agreement.
In no event shall any termination relieve the Licensee of the obligation to pay any fees payable to 42Gears or its respective authorized representative for the period prior to the effective date of termination.

17. Suspension of Services

In addition to the termination rights and without limiting Licensor’s other rights and remedies, Licensor reserves the right to suspend Licensee’s access to a Software 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 Authorized users’ use of the Software 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.

18. Limitation of Liability

NEITHER 42GEARS NOR CUSTOMER SHALL BE LIABLE TO THE OTHER PARTY, OR ANY END USER, OR ANY OTHER THIRD PARTY WITH RESPECT TO ANY PRODUCT, SERVICE OR OTHER SUBJECT MATTER OF THIS AGREEMENT FOR ANY PUNITIVE, INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING LOSS OF PROFITS, REVENUE, OR DATA), WHETHER ARISING IN CONTRACT, IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR ANY OTHER CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR ITS TERMINATION OR NON-RENEWAL.

19. Export Restrictions.

The export and re-export of Services may be controlled by the United States Export Administration Regulations or other applicable export restrictions or embargo. The Services may not be used in Cuba; Iran; North Korea; Sudan; or Syria or any country that is subject to an embargo by the United States and Customer must not use the Services in violation of any export restriction or embargo by the United States or any other applicable jurisdiction. In addition, Customer must ensure that the Services are not provided to persons on the United States Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals. 

20. By using the Software and accepting this Agreement Licensee consent to receive, install and use any updates and upgrades to the software that will be transmitted by 42Gears automatically. The functionality of the Software can only be preserved during the Subscription Period if all received updates and upgrades are installed immediately following receipt. In case such updates and upgrades are subject to separate and additional subscription fees, 42Gears will inform You about such fees in advance.

21. GENERAL:

Entire Agreement Clause: These terms and conditions constitute 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 Agreement 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 Agreement is valid unless it is in writing and signed by an authorized representative of the licensor. 

Severance: If any provision of this Agreement is declared illegal or unenforceable, such provision is to be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect. 

Waiver: Any delay or failure by the licensor in enforcing its rights under this Agreement 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 Agreement 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 and Jurisdiction: 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.

Version 1.0

This Terms of Use was last updated on November 8, 2023