SureMDM Hub EULA
(“You”, “Your”/ “Authorized User”), either an individual or a legal entity, and applicable 42Gears Entity as determined in accordance with this Agreement ("42Gears”). This Agreement sets forth the terms and conditions under which Authorized User is licensed to use the Software (as defined below) being distributed with this Agreement.
THIS IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND 42Gears 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 42GEARS AND (IV) DELETE OR RETURN THE SOFTWARE TO 42GEARS. THIS AGREEMENT APPLIES TO:
- SUREMDM HUB SERVICES FOR 42GEARS CHANNEL PARTNERS, RESELLERS, DISTRIBUTORS, ORIGINAL EQUIPMENT MANUFACTURERS (“OEM”), MANAGED SERVICE PROVIDERS (“MSP”) ETC.
EACH TIME YOU VIEW THE WEBSITE AND USE THE SOFTWARE AS A SERVICE (SAAS) SOLUTIONS. DO NOT CLICK THE “I ACCEPT” BUTTON IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING TERMS AND CONDITIONS.
The following terms and conditions apply when You acquire the full-use license of the Software.
- Authorized Users: Authorized Users are Distributors, Channel Partners, OEM’s, Managed Service Providers (MSP), Resellers who have executed a valid Agreement
with 42Gears or any third-party individuals/organizations that are /distributing/reselling SureMDM Subscription.
- Customers: Customers are the third-party individuals or organizations whose SureMDM console and associated data is managed by the Authorized Users via a Software (SureMDM Hub).
- Support and Maintenance: The technical support and maintenance services offered by the 42Gears that includes relevant Software Updates provided to Authorized User at 42Gears’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 42Gears from time to time.
- Effective date: The date when the Authorized User agrees to the terms and conditions of this EULA by signing up for an account.
- Authorized User Data: Means all data, information, and other materials that Authorized User or its authorized users store, process or otherwise transmit through their use of SureMDM Hub SaaS, including without limitation, user information etc.
- Authorized User Network: Means the hardware and software components, including client machines, servers, and internetworking devices within Authorized User’s internal computer network at Authorized User’s location.
- Quote Means a written quotation of 42Gearss’ offerings provided to the Authorized User by 42Gears, which is accepted by Authorized User and considered an “order” by signing and returning quotation to 42Gears.
- Software: 42Gears’s product SureMDM Hub, consisting of Server application hosted on cloud, and the associated documentation, provided to Customer by 42Gears pursuant to this Agreement, in object code format.
- 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.
- Third Party Software: Means software which is created or developed by a party other than the 42Gears 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. RESTRICTIONS ON USE
Authorized User shall not itself or authorize or permit any third party including its customers 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 42Gears in advance pursuant to the
Agreement and (viii) have an access to any third party’s data or customer’s SureMDM console without obtaining a valid legal consent as applicable to them.
3. AUTHORISED USER’s OBLIGATIONS
You acknowledge, agree, and warrant that: (i) You will be responsible for Your and Your customer’s activity and compliance with this Agreement, and if You become aware of any violation, You will immediately terminate the offending party’s access to the Software and Documentation and notify 42Gears (ii) You shall use the Software and Documentation solely in a manner that complies with all applicable laws in the jurisdictions in which You use the Software and Documentation, including, but not limited to, applicable local, state, federal, and international laws, including intellectual property, privacy and security laws.
You are solely responsible for all Your and Your customer’s data, including but not limited to its accuracy, quality, and legality. You represents and warrants that You: (a) have the legal rights and consent to access Your customer’s data via their SureMDM console; (b) have provided any required notices and has obtained any consents and/or authorizations (including any required from Your customer) related to Your access and use of the Software and the processing of and access to Your customer’s data ; and (c) will comply with all applicable laws and regulations for collecting and processing Your customer’s data , and transferring the same to 42Gears. You are further responsible for taking and maintaining appropriate steps to protect the confidentiality, integrity, and security of Your customer’s data.
Authorized User may make a copy of the Documentation 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 42Gears without modifications. Authorized User recognizes that the Software and its Documentation are protected by copyright and other relevant laws. 42Gears 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 Authorized User.
5. OWNERSHIP AND RESERVATION OF RIGHTS
42Gears grants no ownership rights to the Authorized User 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). Authorized User hereby irrevocably assigns and agrees to assign all of its right, title, and interest in and to any Feedback to 42Gears. To the extent such Feedback cannot be assigned, Authorized User 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 Authorized User irrevocably acknowledges that, subject to the rights granted herein, Authorized User has no ownership interest in the Software provided to it. 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.
6. SYSTEM REQUIREMENTS
Authorized User 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 42Gears to Authorized User from time to time. Authorized User further 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 Authorized User.
7. PROTECTION AND SECURITY
The Authorized User agrees to use reasonable endeavors to safeguard the Software to ensure that no unauthorized person has access to them and that there is no unauthorized copying or distribution of the Software or the license key(s).
8. THIRD PARTY SOFTWARE
The Software may incorporate or access Third Party Software and services. Authorized User agrees to and must ensure all users always comply with all applicable terms and conditions for the Third-Party Software. 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. 42Gears 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 42Gears holds the entire responsibility and legal obligations related thereof.
42Gears may, either itself or through an independent third-party auditor, audit Authorized User’s Use of the Software to verify that Your use of the Software is in compliance with this Agreement including the applicable privacy requirements and this audit shall be conducted not more than once per year, with prior written notice to Authorized User.
10. THIRD PARTY CLAIMS
If any person alleges, or if the 42Gears believes, that the use of the Software may infringe the intellectual property and privacy rights of any person, 42Gears may, at its discretion, suspend Authorized User’s license to use the Software.
11. OWNERSHIP RIGHTS
This license grants no title or ownership rights to Authorized User and is not a sale of any rights in the Software (including Enhancements and Upgrades) 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; (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). Authorized User hereby irrevocably assigns and agrees to assign all Authorized User’s right, title, and interest in and to any Feedback to 42Gears.
Further all Feedback shall be deemed non-confidential to Authorized User. To the extent such Feedback cannot be assigned, Authorized User hereby grants and agrees to grant to 42Gears 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 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 42Gears’ 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, Authorized User shall not disclose or display any Confidential Information of the 42Gears, including the Software, to any Competitor of 42Gears.
13. TECHNICAL SUPPORT
42Gears 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, Authorized User 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: 42Gears’s Technical Support do not include the rectification of errors, defects or problems caused or contributed to by:
- default or negligence of Authorized User.
- improper or unauthorized use of the Software.
- any modifications or alterations of the Software other than as approved by the 42Gears or by any person other than the 42Gears.
- any failure by Authorized User to comply with the Documentation.
- any failure by Authorized User to download and install Updates made available on the
- any failure by Authorized User to comply with any reasonable guidelines or instructions provided by the 42Gears.
- any fault, defect, omission or error in any data, software or equipment not supplied by the 42Gears.
- 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 42Gears, or in a manner or for a purpose in breach of this EULA or not reasonably contemplated by this EULA.
The 42Gears reserves the right to charge Authorized User 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.
14. VERSION SUPPORT
42Gears 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 42Gears 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, 42Gears will use all its commercially reasonable efforts, to restore the affected services as soon as possible and upon
42Gears’s failure to do so, the Authorized User’s sole remedy shall be to terminate the Agreement as contemplated in this Agreement.
15. LIMITED WARRANTY
42Gears hereby warrants that to its knowledge it has the necessary rights and title to license the Software to the Authorized User.
42Gears does not provide training for the use of the Software unless requested by Authorized User or otherwise provided by this Agreement. To the extent the 42Gears is requested to provide any Software related services, the same will be provided pursuant to the then current prices for the software related services and will be invoiced to the Authorized User.
17. DISCLAIMER OF WARRANTIES
AUTHORIZED USER ASSUMES THE ENTIRE RISK AS TO THE USE, QUALITY AND PERFORMANCE OF THE SOFTWARE. THE SOFTWARE AND ACCOMPANYING WRITTEN MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND WHETHER EXPRESS OR IMPLIED, 42Gears SPECIFICALLY DISCLAIMS WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT OF ANY THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN ADVICE GIVEN BY 42Gears, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY AND AUTHORISED USER MAY NOT RELY UPON SUCH INFORMATION OR ADVICE.
18. INFRINGEMENT INDEMNITY
42Gears will defend and pay the costs and damages awarded by a court of final jurisdiction arising from any third-party claims brought against authorized User claiming that the Software infringes any patent or copyright of a third party. 42Gears shall have no liability under this Section unless (a) Authorized User notifies 42Gears in writing immediately after Authorized User becomes aware of a claim or the possibility thereof; (b) 42Gears has sole control of the settlement, compromise, negotiation, and defense of any such action; and (c) Authorized User cooperates, in good faith, in the defense of any such legal action. Authorized User may retain its own counsel at Authorized User’s own expense.
You acknowledge and agree that 42Gears shall not be responsible for any loss, damage or injury suffered by You and Your customers arising out of or in connection with the Software or use thereof, and agree to indemnify and hold harmless 42Gears and its employees, officers, agents, directors, affiliates etc. from any claims, liabilities, losses, damages, demands, actions, expenses and costs, including, without limitation, attorney’s fees and court costs arising out of or in connection with any of the following(i) Your breach of any covenant, obligation, representation or warranty in this Agreement(ii) Your use of the functionalities of the Software; (iii) any third party infringement or misappropriation by or through use of the Software in a manner other than as permitted in this Agreement (iv) your violation of law, including but not limited to any law or regulation relating to the privacy and/ or security of your customers and their devices.
20. NO LIABILITY
42Gears shall have no liability for any claim of infringement based on (i) Software which has been modified by parties other than 42Gears or parties not authorized by 42Gears; (ii) Authorized User’s use of the Software in combination with data where use with such data gave rise to the infringement claim; or (iii) Authorized User’s use of the Software with non-42Gears software or hardware, where use with such other software or hardware gave rise to the infringement claim and (iv) Authorized User’s breach of this Agreement and the Documentation. Notwithstanding anything provided in this Agreement, 42Gears shall be not liable for any damages and losses for any claims arising out of or in connection with the third party claims including Yours customer’s claims for privacy violation that occurs due to or out of using the Software provided by 42Gears.
42Gears shall have no liability to You and Your customers or to any third party claiming through or under You by reason of the execution or performance of this Agreement or any acts or omission whatsoever. In addition, neither 42Gears, nor its agents, officers, and employees, will have any personal liability to You or to any third party claiming through or under You by reason of the execution or performance of this Agreement.
Further, You shall indemnify, defend and hold harmless 42Gears, its affiliates and their respective directors, agents, representatives and employees from any and all claims, costs, judgments, losses, liabilities, fines or penalties, including but not limited to attorney’s fees, arising from any third- party claims including Yours customer’s claims due to Your employees, Your negligence, wrongful acts, violations of privacy laws or any breach of this Agreement.
Remedies. If in 42Gears’s opinion, the Software becomes or is likely to become, the subject of a claim of intellectual property right’s infringement, 42Gears may, at its option, (i) obtain the right for 42Gears 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 Authorized User’s return of the Software, 42Gears will refund to Authorized User, as Authorized User’s sole remedy for such license termination, all license fees paid by Authorized User for the terminated license. This Section states the entire liability of the 42Gears with respect to any claim of infringement regarding the Software. Injunctive Relief: Nothing in this Agreement limits party’s ability to seek equitable relief.
21. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, 42GEARS SHALL NOT BE LIABLE FOR ANY PERSONAL INJURY, DEATH, OR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF BUSINESS INFORMATION OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF 42GEARS KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER WILL 42GEARS BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, ANY ALLEGED OR ACTUAL IMPROPER USE OR INSTALLATION OF THE SOFTWARE BY AUTHORIZED USER, ALLEGED OR ACTUAL NEGLIGENT ACTS OR OMISSIONS, WILFUL MISCONDUCT, FRAUD OR FAILURE OF THE SOFTWARE DUE TO THIRD PARTIES SOFTWARE OR THE AUTHORIZED USER’S COMPUTER NETWORK. IN ANY CASE 42GEARS’S CUMULATIVE LIABILITY TO AUTHORIZED USER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND SHALL NOT EXCEED THE FEES ACTUALLY PAID BY AUTHORIZED USER TO 42GEARS OR ITS AUTHORIZED RESELLER FOR THE SOFTWARE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. THE DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT ARE FUNDAMENTAL PARTS OF THE BASIS OF 42GEARS’S LICENSE HEREUNDER, AND AUTHORIZED USER ACKNOWLEDGES THAT 42GEARS WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE TO AUTHORIZED USER 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.
22. TERM AND TERMINATION
The agreement shall commence on the date the Authorized User agrees to the terms of this
Agreement by clicking the “I Accept” button to these terms and continues until the perpetual or subscription licenses granted in accordance with the SureMDM Hub License Agreement have expired or been terminated. If You purchase an auto-renewing subscription of SureMDM Hub product, Your purchase constitutes Your agreement to auto-renewal for the same term as initially purchased.
Termination by Authorized User: Authorized User may terminate this EULA 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 EULA immediately by giving written notice to Authorized User if:
- The Principal Agreement executed between the Authorized User and 42Gears is terminated or expired and is not renewed.
- Authorized User fails to comply with any terms or conditions of this Agreement.
- Authorized User becomes bankrupt or insolvent; or
- 42Gears is required to do so by law (e.g., where the provision of the Software or Support and Maintenance to Authorized, User is or becomes unlawful).
Consequences of Termination: Upon termination or expiry of this EULA for any reason the Authorized User must:
- remove the Software credentials generated once the Authorized User logs in on the Hub server
- cease all use or exploitation of any intellectual property or confidential information of
42Gears relating to the Software; and iii. deliver up or destroy (at 42Gears’ option) all copies, full or partial, of the Software and Documentation that are in the possession of Authorized User.
Notwithstanding anything provided foregoing, termination of this Agreement will not limit 42Gears 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, 42Gears reserves the right to suspend
Authorized User’s access to a Service if it determines in its sole discretion, that (i) Authorized
User’s use of the Services are in breach of this Agreement and not cured as required in this Agreement; (ii) Authorized User failed to timely address 42Gears’s request to take action pursuant to notification issued by 42Gears; (iii) suspension is required pursuant to a subpoena, court order or other legal process. 42Gears agrees to notify Authorized User of any such suspension and Authorized User will remain responsible for all fees incurred before or during such suspension.
42Gears reserves the right, in its discretion, to impose reasonable fees to restore archived data upon Authorized User’s request from delinquent accounts.
23. SURVIVAL CLAUSE
Expiry or termination of this Agreement 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.
Authorized User must ensure their compliance with the obligations under this Agreement. Authorized User will duly observe all of its obligations under any relevant data protection law or regulation that may apply to the relationships contemplated under this Agreement, including specifically, any obligation for Authorized User to configure the software and/or Hosted service in accordance with all applicable laws and regulations and obtaining any consent to access their customer’s SureMDM console. Further, as required by applicable law or regulation, Authorized User will notify users that any customer content/Authorized User data provided as part of the Software and/or Hosted service will be made available to a third party i.e. (42Gears) as part of the 42Gears providing the software and/or Hosted Service.
25. DATA PROTECTION
As the performance of the Agreement and delivery of the Services implies the delivery of the personal data, 42Gears shall comply with the applicable data protection laws and regulations. For the avoidance of doubt:
- 42Gears shall notify the Authorized User of any data breaches involving the Authorized User data it processes on behalf of the Authorized User as soon as reasonably practicable. ii. 42Gears shall provide support to Authorized User at their request to assess the impact of its services on the Authorized User’s privacy (for example, through assisting the Authorized User with a Data Protection Impact Assessment).
iii. 42Gears shall provide support to Authorized Users 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).
42Gears agrees to deal with personal data relevant to Authorized User as per the Data Processing Addendum Agreement/Policy
26. DATA SECURITY
You agree that the 42Gears will process certain information which may include email address, Internet protocol address, etc. about You 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
Authorized User Data. When 42Gears processes Personal Data on Your behalf to provide the Software, You expressly agree that You are the data controller (and 42Gears, the data processor) and shall determine the purpose and manner in which such Personal Data is or will be processed.
Further, 42Gears shall not be processing any of your customer’s data if you have access to it via Software.
42Gears 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 42Gears’s Privacy Notice, which is available at https://www.42gears.com/trust-center/privacy/privacy-policy/. By accepting this Agreement, You acknowledge that You hereby agree and consent to the terms and conditions of our Privacy Notice.
28. SOFTWARE OPERATION DISCLAIMER
You are aware that the function of the Software provided by 42Gears 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 Authorized User’s intended use of the Software and does not make any representation that the Software will meet the requirements of the Authorized User. Authorized User alone is responsible to determine the Software’s suitability for Authorized User’s intended usage. Authorized User 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 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, the 42Gears will not be liable for any damages (direct, indirect or consequential) arising from device malfunction caused by the operation of the Software. Authorized User 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 42Gears 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). Authorized User also permits 42Gears to bring out press releases and will be open to provide endorsement quotes for 42Gears’s marketing purposes, provided 42Gears obtains prior written approval on such press releases and quotes.
30. AUTHORIZED USER WARRANTIES
The Authorized User acknowledges and agrees that the 42Gears offers and licenses the Software online in accordance with 42Gears’s applicable laws. The Authorized User warrants that the Authorized User will comply with Authorized User’s applicable laws in downloading and/or using the Software pursuant to this Agreement. Authorized User 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 Authorized User’s applicable laws and Authorized User will indemnify 42Gears, its affiliates and their directors, officers, employees and agents from any third party claims, losses, damages or penalties (including reasonable attorney fees) arising from Authorized User’s breach of this warranty.
31. AUTHORIZED DISTRIBUTORS AND RESELLERS
42Gears’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 42Gears. Further, the authorized distributors and resellers are governed by a separate agreement executed with 42Gears.
32. TECHNOLOGY EXPORT
Authorized User 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, Authorized User 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, Authorized User is solely responsible for compliance related to the manner in which it chooses to use the Software.
- Entire Agreement Clause: This Agreement constitutes the entire agreement between 42Gears and the Authorized User 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. 42Gears doesn't agree to any other terms, including without limitation any terms on Authorized User’s purchase orders or invoices or similar documents.
- Amendments: 42Gears reserves the right to modify the terms of this Agreement from time to time and any such modifications will take effect once published on 42Gears’s Website or otherwise notified to Authorized User. Subject thereto, no amendment or modification to this Agreement is valid unless it is in writing and signed by an authorized representative of the 42Gears.
- 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 42Gears in enforcing its rights under this Agreement is not to be construed as a waiver of those rights.
- Assignment: The Authorized User may not assign, sub-contract or otherwise transfer any of the Authorized User’s rights or obligations under this Agreement unless the 42Gears 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, 42Gears 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
Release Date: 3/11/2022