These Terms of Use("Agreement") are hereby entered into and agreed upon by and between Licensor (“Licensor/42Gears”) and Licensee (“You”, “Your”). This Agreement sets forth the terms and conditions under which You are licensed to use the Software (as defined below) being provided with this Agreement. 

THIS IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND 42GEARS AND GOVERNS THE USE OF THIS SOFTWARE INCLUDING, WITHOUT LIMITATION ALL THE ASSOCIATED DOCUMENTATION. BEFORE DOWNLOADING, INSTALLING, COPYING, OR USING THE SOFTWARE.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF 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.

1. DEFINITIONS

1.1 “Licensee” means an individual or an entity who agrees to the terms and conditions of this Agreement and to whom the license for Software is granted.

1.2 “Administrator” means an individual who has been authorized by the Licensee to access and manage the Software.

1.3 “End-Customer” refers to the individual or an entity whose SureMDM console and associated data is managed by the Licensee (either itself or through its Administrator) via a Software (SureMDM Hub).

1.4 “Licensee Data” means any electronic data or information submitted by the Licensee while signing up in the Software. For purposes of clarity, Licensee Data excludes any electronic data or information submitted outside of the direct control of the Licensee and any such data and information that is not otherwise available to the open public.

1.5 “Documentation” means the Documentation provided or made available by 42Gears to Licensee describing use and operation of the Software.

1.6 “Device” refers to any computing Device or instrument that is supported by the Software.

1.7 “Software” refers to 42Gears’s product, SureMDM Hub, which includes the Server application hosted on the cloud, and the associated Documentation provided to the Licensee by 42Gears according to this Agreement, in object code format.

1.8 “Software Update” refers to any patches, modifications, enhancements, improvements, and revisions of the Software, including new releases, made available by 42Gears at its discretion from time to time.

1.9“Software-related Services” are services performed by 42Gears as reflected in an Order, including installation, activation, training, Software configuration, modification, integration, reconfiguration, assessment, optimization, or other Software-related services. These services exclude professional services for the development of custom Software or other intellectual property, which would be governed by a separate agreement.

1.10 “Support and Maintenance” covers the technical support and maintenance services provided by 42Gears, including relevant Software Updates, which are offered at 42Gears's sole discretion.

2. COMMERCIAL LICENSE
Licensor grants Licensee a non-exclusive, non-transferable license to use the Software subject to the terms and conditions set forth herein. The license shall be valid till the Licensee is managing the End-customer licenses. The management of this license shall be handled exclusively by the Licensee. Licensee will be responsible for overseeing all aspects of license administration, including but not limited to license activation, renewals, and compliance with licensing terms. Licensor is responsible to assign the Licenses to Licensee based requirement and licensing type.
The Software is provided on a commercial basis with no free trial period. The Licensee acknowledges that no free trial or evaluation period will be offered prior to the commencement of the license term.

3. RESTRICTIONS ON USE
In addition to all other terms and conditions of this Agreement, Licensee shall not: (i) install one copy of the Licensed Software on more than one server; (ii) remove any copyright, trademark or other proprietary notices from the Software or its copies; (iii) make any copies; (iv) rent, lease, license, sublicense or distribute the Software or any portions of it on a standalone basis or as part of your application; (v) modify or enhance the Software; (vi) use the Software in a computer-based services business or publicly display visual output of the Software or use the Software for the benefit of any other person or entity; (vii) reverse engineer, decompile or disassemble the Software; or (viii) allow any third Parties to access, use or support the Software; (ix) do any actions or omissions that may cause harm or have a detrimental impact on the Software in any manner.

4. LICENSEE’S OBLIGATIONS

4.1 Licensee acknowledge, agree, and warrant that they: (i) are responsible for both themselves, Administrator’s and End-customer’s activities and compliance with this Agreement and if the Licensee becomes aware of any violation, will immediately terminate the offending party’s access to the Software and Documentation and notify 42Gears. (ii) will use the Software and Documentation in a manner that complies with all applicable laws in the jurisdictions where Licensee operate, including, but not limited to, local, state, federal, and international laws related to intellectual property, privacy, and security.

4.2 The Licensee is solely responsible for all data related to Licensee and End-customers, including its accuracy, quality, and legality. The Licensee represent and warrant that they: (a) have the legal rights and consent to access End-customer’s data and their SureMDM console; (b) have provided any required notices and obtained all necessary consents and/or authorizations (including those required from End-customer) for access and use of the Software and for processing and accessing End-customer’s data ; and (c) will comply with all applicable laws and regulations regarding the collection, processing, and transfer of End-customer’s data to 42Gears. The Licensee are also responsible for taking and maintaining appropriate measures to protect the confidentiality, integrity, and security of End-customer’s data.

5. FEES AND PAYMENT:

5.1 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).
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 Licensee. This provision does not apply to any Taxes for which Licensee is exempt, provided Licensee has furnished 42Gears with a valid tax exemption certificate.

5.2 Payment Due Date: The applicable fees are due for payment before accessing the Software. Applicable fees for the subscription of the Software shall be paid in advance before purchasing the subscription.

6. TAXES
Any applicable license or other fees payable by Licensee under this Agreement are (unless otherwise expressly stated by the Licensor) exclusive of any applicable goods or services taxes or other Taxes of similar nature (“Taxes”). Upon Licensor’s request due to its legal obligation to pay or collect Taxes, the Licensee must pay or reimburse to Licensor any amounts payable on account of such Taxes levied upon or arising out of the supply of the Software or any services by the Licensor to Licensee unless the Licensee submits a valid and authorized tax exemption certificate to the Licensor.

7. AUDITS
42Gears, or its appointed representatives, shall possess the authority to inspect the records pertaining to the Licensee’s activities under this Agreement, during standard business hours and with a minimum of ten days' prior written notice. This audit is intended to ascertain the Licensee's compliance with the terms of this Agreement, and the Licensee hereby consents to cooperate with 42Gears in facilitating such actions. The costs associated with the audit shall be borne by 42Gears, unless the audit uncovers a material breach of this Agreement by the Licensee, including, but not limited to, any violation of the Terms, in which event the Licensee shall reimburse 42Gears for all reasonable expenses incurred in connection with the audit. Audits shall not occur more than once within any twelve-month period, unless a breach of the Agreement by the Licensee is identified. Furthermore, 42Gears reserves the right to offset any amounts owed to the Licensee against any sums owed by the Licensee to 42Gears.

8. OWNERSHIP
As between 42Gears and Licensee, 42Gears owns all right, title, and interest in and to the Software, templates and policies included in and configurations of any part(s) of the Software, Documentation including all intellectual property and other proprietary rights in each of the foregoing.
Licensee acknowledges and agrees that (a) it does not acquire any rights, express or implied, in or to the Software or (b) any configuration or deployment or usage of the Software will not affect or diminish 42Gears’s rights, title, and interest in and to the Software, as applicable.
All brand, product, and Software names and marks used in the Software which identify 42Gears are proprietary names and marks of 42Gears. All brand, product, and service names and marks used in the Software which identify third Parties or their products or services are proprietary names and marks of such third Parties. Nothing in the Software will be deemed to confer on any Licensee or any third party any license or right with respect to any such name or mark. Further, the Licensee shall not publish, distribute, extract, reuse, or reproduce any content from the Site and Software in any form other than in accordance with this Agreement. The Licensee will not remove, alter, or obscure any proprietary notices (including copyright notices) of 42Gears or its suppliers in the Software or Documentation.

9. 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 the third party, Licensor may, at its discretion, suspend Licensee’s license to use the Software until the Licensor:

9.1 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

9.2 has procured the right for Licensee to continue use of the Software in accordance with this Agreement.

10. NO LIABILITY

10.1 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.

10.2 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.

11. WARRANTY DISCLAIMER

11.1 42Gears makes no warranty that the Software will be error-free. The Software is provided "As-is," without any warranties, including but not limited to implied warranties of merchantability or fitness for a particular purpose, or warranties regarding its performance or the results Licensee may achieve. Licensees are solely responsible for assessing the suitability of the Software for their needs and assume all risks associated with its use, including but not limited to potential program errors, data loss, damage to equipment, and interruptions in operation.

11.2 42Gears will not warrant any Software: (1) that has not been used in accordance with this Agreement and the Documentation; (ii) that has been altered in any way by Licensee or any third party not under the control of 42Gears, or their employees or agents; (ii) that is used in an operating environment other than as specified in the Documentation; (iii) where such nonconformity in the Software is due to abuse, neglect, or other improper use by the Licensee; or (vi) where reported errors or nonconformities cannot be reproduced by 42Gears, working, in good faith, with Licensee’s assistance

12. MARKETING

12.1 Unless Licensee provides us with written notice to the contrary or of any reasonable restrictions or requirements, Licensee agree that we may use their’ 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 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.

12.2 The Licensee shall not use the Licensor’s trademarks, logos, or any related intellectual property without obtaining the Licensor’s prior written consent. Any such use must be in accordance with the guidelines and conditions provided by the Licensor at the time of consent.

13. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL 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,LOSS OF REVENUE GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA,DATA LEAKAGE, LOSS OF BUSINESS INFORMATION OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), ANY OTHER DAMAGES OR LOSSES INCLUDING COST ASSOCIATED WITH DATA USAGE OVER COMMUNICATION NETWORKS, INABILITY TO USE THE SOFTWARE, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
FURTHER LICENSOR WILL NOT 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 LICENSEE, ALLEGED OR ACTUAL NEGLIGENT ACTS OR OMISSIONS, WILFUL MISCONDUCT, FRAUD OR FAILURE OF THE SOFTWARE DUE TO THIRD PARTIES SOFTWARE OR THE LICENSEE’S COMPUTER NETWORK OR DATA BREACHES. IN ANY CASE LICENSOR OR ITS AFFILIATES CUMULATIVE LIABILITY TO OTHER PARTY, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND SHALL NOT EXCEED THE FEES ACTUALLY PAID BY LICENSEE TO LICENSOR OR ITS AUTHORIZED RESELLER FOR THE SOFTWARE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO CLAIM LESS THE AMOUNT CONSUMED FOR SUPPORT AND MAINTENANCE IN THE PERIOD PRECEDING THE CLAIM.
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.

THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO (1) PERSONAL INJURY OR DEATH RESULTING FROM LICENSOR’S NEGLIGENCE; OR (2) FOR ANY OTHER MATTER FOR WHICH LIABILITY CANNOT BE EXCLUDED BY LAW.

14. INDEMNIFICATION
Licensee shall indemnify and hold harmless the Licensor including its affiliates, subsidiaries, staff, officers, directors, partners and controlling persons from and against any and all third party claims or/and losses incurred or suffered by the Licensor arising out of or relating to, or by reason of : (i) alleged or actual negligent acts or omissions, wilful misconduct or fraud in connection with this Agreement, (ii) alleged or actual breach or non-compliance with, any covenant or provision of this Agreement; (iii) alleged or actual violation of any statute, law, ordinance or regulation, or (iv) any alleged or actual legal claims made by End-Customers against the Licensor, including but not limited to claims arising from violations of applicable privacy laws or any breach of the contractual relationship between the Licensee and its End-Customers.

15. TERM; SUSPENSION; TERMINATION

15.1 This Agreement commences on the date the Licensee accepts the terms of this Agreement by downloading the Software and continues until all subscription Licenses granted in accordance with this Agreement have expired or been terminated.

15.2 The Subscription Licenses purchased by Licensee commence on the start date specified in the Software and continue for the subscription term specified therein. Except as otherwise agreed between the Parties, all subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless 42Gears has provided the Licensee written notice of a pricing increase at least thirty (30) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.

15.3 Termination for Cause
Either party may terminate this Agreement for cause: (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Licensee agrees that 42Gears may, at its sole discretion, at any time discontinue providing or limit access to the services, Software, website, any areas of the website or content provided on or through the website. 42Gears will terminate or limit Licensee’s access to or use of the services, Software or website if, under appropriate circumstances, Licensee is determined to be a repeat infringer of third party copyright rights. Licensee agrees that 42Gears shall not be liable to Licensee or any third party for any termination or limitation of Licensee’s access to or use of the services, Software, website, or any content on or through the website.

15.4 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.

15.5 Consequences of Termination
Upon termination or expiry of this Agreement for any reason the Licensee must:

1. 1. 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;
   2. remove the Software from each server and each computer or terminal on which it is installed;
   3. cease all use or exploitation of any intellectual property or Confidential Information of Licensor relating to the Software; and
   4. 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 You (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.

15.6 END-CUSTOMER’S POST TERMINATION
In the event of termination of this Agreement with the Licensee, End-Customer Licenses shall also be terminated if the Licensee’s existing SureMDM Hub account/subscription is terminated. Upon expiration or termination, the End-Customer may, at their discretion, either transition to a new Partner or MSP (Managed Service Provider), as applicable, or continue utilizing the SureMDM console independently, subject to the terms and conditions set forth in this applicable Agreement or any applicable terms and conditions set by 42Gears then.

16. OBLIGATIONS TO CONFIDENTIAL INFORMATION
Each party acknowledges that it and its affiliates (“Receiving Party/Recipient”) may have access to Confidential Information of the other party and its affiliates (“Disclosing Party”) in connection with this Agreement. 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 Disclosing Party 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.

16.1 Exclusions to Confidential Information
Confidential Information does not include information that: (a) was in the public domain at the time of Disclosing Party'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 Disclosing Party'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 the Disclosing Party; or (f) is approved for release by the Disclosing Party in writing. Recipient shall use any Confidential Information received (or derivatives thereof) solely for the purpose of performing its obligations under this Agreement.

16.2 Return/ Deletion of Confidential Information
All Disclosing Party’s Confidential Information and derivatives thereof shall remain the property of Disclosing Party and promptly be deleted or returned to Disclosing Party following the termination of this Agreement as requested by the Disclosing Party in writing. Without limiting the foregoing or the Software Restrictions, the Licensee shall not disclose or display any Confidential Information of 42Gears, including the Software, to any Competitor of 42Gears or on any public forum.

17. SOFTWARE OPERATION DISCLAIMER

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.

18. USAGE OF SOFTWARE
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.

19. TECHNOLOGY EXPORT AND COMPLIANCE

19.1 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).

19.2 The Licensee is solely responsible for compliance related to the manner in which it chooses to use the Software. Further, Licensee's intentional breach of this sanction’s compliance clause shall constitute cause for immediate termination of this Agreement.

19.3 Licensee or any of its officers, employees, agents, representatives, contractors, intermediaries, or any other person or entity acting on its behalf warrants that, during the term of this Agreement has taken or will take any action, directly or indirectly, that contravenes (a) the United Kingdom Bribery Act 2010, (b) the United States Foreign Corrupt Practices Act 1977, or (c) any other applicable anti-bribery and related laws or regulations anywhere in the world.

20. PRIVACY POLICY AND PROTECTION OF DATA

20.1 At all times Licensee and End user information will be treated in accordance with 42Gears Privacy Notice, which is incorporated by reference into this Agreement and may be viewed at https://www.42gears.com/trust-center/privacy/privacy-policy/ Without limiting the above, 42Gears shall act as a “DATA PROCESSOR” for the Licensee and maintain appropriate and reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Licensee Data and End user data.

Specifically, 42Gears shall: a) Notify Licensee promptly after 42Gears learns of any potential, actual or suspected misappropriation or unauthorized access to, or disclosure or use of, Licensee Data, End user data, or other compromise of the security, confidentiality or integrity of Licensee Data and/or End user data (collectively, “Security Breaches”). 42Gears will promptly investigate each potential, actual, or suspected Security Breach and assist Licensee in connection with any investigation that Licensee may reasonably desire to conduct with respect to such Security Breach. 42Gears will take all commercially reasonable steps requested by Licensee to limit, stop, or otherwise remedy any potential, actual, or suspected Security Breach.
Please note that 42Gears is not obliged to notify the Licensee in case of breaches that do not result in data breach such as system shutdowns that don't compromise data.

20.2 Limit access to Licensee Data and End user data solely to personnel of 42Gears who have a need of such access in connection with the delivery and performance of the services under this Agreement, and shall not sell, disclose, release or otherwise make available Licensee Data to any other party. The disclosure of Licensee Data shall be limited to the specific information necessary for such personnel to deliver and perform the services under this Agreement. 42Gears shall inform its personnel with access to Licensee Data of the requirements set forth herein and shall ensure that such personnel are bound by and comply with such requirements.42Gears will not be in violation of its obligations under the immediately preceding paragraph when Licensee Data and/or End user data is disclosed by 42Gears to the extent legally required by a valid order of a court of competent jurisdiction or administrative agency, or a validly enforceable subpoena; provided that (i) 42Gears provides prompt written notice to Licensee of any such request or requirement with reasonably sufficient details regarding the request or requirement and the Licensee Data and/or End user data that 42Gears is contemplating disclosing so that Licensee may seek a protective order or other appropriate remedy and (ii) 42Gears reasonably cooperates with Licensee in their efforts to seek such order or remedy.

20.3 Use Licensee Data and End user data only for the specific purpose for which it was provided to 42Gears or as otherwise authorized by Licensee in writing and shall only reproduce Licensee Data and/or End user data to the extent necessary for these purposes.

20.4 Provide Licensee with information as may be reasonably requested by Licensee from time to time with regard to 42Gears compliance with its obligations herein, including, if available and not subject to the attorney-client, work product or any similar privilege, the results of any audits or tests performed on 42Gears’s information security program or on any components thereof subject to the internal process and policies of 42Gears.

20.5 42Gears shall not be liable or indemnify the Licensee for any data breaches unless the data breach was proved by the competent court or authority to be caused by 42Gears failure to meet its reasonable security requirements under this Agreement.

20.6 In case the Licensee is from the European region, The DPA (Data Processing Addendum) between Licensee and 42Gears shall include the SCC (Standard Contractual Clauses) for Processor to Processor as applicable by GDPR (General Data Protection Regulation) and privacy regulations. Please visit here: https://www.42gears.com/trust-center/legal/data-processing-addendum-agreement/

21. TECHNICAL SUPPORT
42Gears shall provide technical support as listed in Annexure A hereto. 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.

21.1 Exclusions to Technical Support: 42Gears’s Technical Support do not include the rectification of errors, defects or problems caused or contributed to by:

1. 1. default or negligence by Licensee.
   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 the 42Gears.
   4. any failure by Licensee to comply with the Documentation.
   5. any failure by Licensee to download and install Updates made available on the   42Gears’s Website.
   6. any failure by Licensee 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 EULA (End User License Agreement) or not reasonably contemplated by this EULA.

42Gears 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.

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 (Original Equipment Manufacturer) 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 Licensee’s sole remedy shall be to terminate the Agreement as contemplated in this Agreement.

22. 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. The following Sections, together with any other terms necessary for the interpretation or enforcement of this Agreement, will survive termination or expiration of this Agreement: 1 (Definitions), 16 (Confidentiality), 8 (Ownership Rights), 5 and 6 (Fees, Payment and Taxes), 11 and 13 (Warranties; Disclaimers; Limitation of Liability), Indemnification, 15.5 (Consequences of Termination), and 23(General).

23. GENERAL

23.1 Entire Agreement: This is the entire Agreement between 42Gears and the Licensee in relation to its subject matter and any prior representations, statements or undertakings however 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 any purchase orders or invoices or similar documents.

23.2 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 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 42Gears.

23.3 Compliance: Each party shall comply with Corruption of Foreign Public Officials Act, applicable Bribery Laws and all 42Gears policies and procedures (if any) with which each party is required to comply relating to prevention of bribery and corruption as updated from time to time by the written Agreement of the Parties. Any resale and/or delivery of the Software or related services to any country shall not violate any applicable National and International Law. It is unlawful and a specific violation of this Agreement to deliberately communicate, transmit in any manner, means or medium, any unsolicited information or material to any individual or groups of individuals (that is: spamming) about 42Gears’s product offering or services. It is also a violation of the Agreement to use such methods to promote the Software. This prohibition specifically includes but is not limited to unsolicited commercial e-mail. In connection with this Agreement, each party 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.

23.4 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.

23.5 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.

23.6 Assignment: The Licensee may not assign, sub-contract or otherwise transfer any of the Licensee’s rights or obligations under this Agreement unless the 42Gears has given its prior written consent.

23.7 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.

23.8 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.
If the matter is not settled within 90 days from initiating the process, the formal proceedings shall be in accordance with the clause 8 below.

23.9 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 Licensee 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 Licensee 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 Licensee agree to submit to the personal jurisdiction of the courts in Bengaluru, India.

ANNEXURE A

Upon payment of applicable fees for a valid license, 42Gears will provide technical support as follows:

1. Availability: 24/7.
2. Nature of support: Assistance provided for installation, maintenance and Software upgrades. Bug fixing is not included as a part of technical support.
3. How to request for technical support:
4. Submit a Ticket: techsupport@42gears.com
5. Live Chat: https://www.42gears.com/chat/
6. Phone: Americas: +1-424-284-2574 | Europe/Africa: +44-161-394-0338 | APAC/Middle East:+91-80-61957000
7. Knowledge Base: https://knowledgebase.42gears.com