Terms of Use - SureMDM (SaaS)
For an independent review and summary of the 42Gears Terms and Conditions of Service, see our Term Scout rating.
This Terms of Use ("Agreement") is hereby entered into and agreed upon by and between you (“You”, “Your”/ “Licensee”), either an individual or a corporate legal entity, and applicable 42Gears entity as determined in accordance with this Agreement ("Licensor"/ “42Gears”). This Agreement sets forth the terms and conditions under which Licensee is licensed to Use the Software (as defined below) which is being distributed under this Agreement.
THIS IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND THE LICENSOR AND GOVERNS THE USE OF THE SOFTWARE INCLUDING, WITHOUT LIMITATION, ALL THE ASSOCIATED DOCUMENTATION. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING, COPYING, AND/OR USING THE SOFTWARE OR SOFTWARE UPDATES. BY CLICKING ON THE "I AGREE" BUTTON OR SIMILAR BUTTON ASSOCIATED WITH THIS AGREEMENT OR BY ACCESSING AND/OR USING THE SERVICES, YOU AGREE TO BE LEGALLY BOUND BY THE TERMS OF THIS AGREEMENT AS WELL AS 42GEARS TERMS OF USE AND PRIVACY NOTICE PROVIDED ON 42GEARS WEBSITE. IF YOU ARE ENTERING INTO THIS AGREEMENT AS AN INDIVIDUAL OR ON BEHALF OF A CORPORATE ENTITY OR OTHER LEGAL ENTITY, YOU HEREBY 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 AN ENTITY.
WHERE A Reseller, Service provider, Consultant, Contractor or other Party downloads, installs, manages or otherwise uses the Software on Licensee’s behalf, such Party will be deemed to be Licensee’s agent and (i) Licensee will be deemed to have accepted all of the terms and conditions of this License Agreement, and (ii) to the extent permitted by applicable law, Licensee, not 42Gears, shall be responsible for the acts or omissions of such Party in relation to its management or use of the Software on Licensee’s behalf.
THIS AGREEMENT WILL TAKE PRECEDENCE OVER ANY CONFLICTING OR INCONSISTENT TERMS OR TEXT INCLUDED IN OTHER MATERIALS (such as. PROMOTIONAL MATERIALS) ON THE WEBSITE OR SHARED WITH THE LICENSEE. FURTHER ANY STANDARD TERMS, INVOICING DOCUMENTS, OR PURCHASE ORDER FORMS PROVIDED BY LICENSEE ARE EXPRESSLY REJECTED UNLESS AGREED IN WRITING BY 42GEARS. HOWEVER, IF YOU HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT WITH 42GEARS REGARDING THE SOFTWARE OR THE SAAS OFFERING (“SEPARATE AGREEMENT”), THE TERMS OF SUCH SEPARATE AGREEMENT SHALL CONTINUE IN FULL FORCE AND EFFECT, AND THIS AGREEMENT SHALL NOT APPLY TO SUCH ARRANGEMENTS.
IF YOU DO NOT AGREE TO THESE TERMS (I) DO NOT DOWNLOAD OR INSTALL THIS SOFTWARE, (II) DO NOT USE THE SOFTWARE IN ANY MANNER AND (iii) DELETE OR RETURN THE SOFTWARE TO THE LICENSOR IMMEDIATELY.
THE SOFTWARE MUST NOT BE USED BY INDIVIDUALS UNDER THE AGE OF THIRTEEN (13) OR BY THOSE WITHOUT LEGAL CAPACITY AS MAY BE PRESCRIBED BY THE LAWS APPLICABLE IN THE TERRITORY IN WHICH YOU ACCESS/ USE THE SOFTWARE. IF YOU ARE UNDER THIRTEEN (13) YEARS OF AGE OR WITHOUT LEGAL CAPACITY, YOU MUST NOT USE THE SOFTWARE.
THIS AGREEMENT APPLIES TO:
- ALL SUBSCRIPTIONS FOR 42GEARS’ HOSTED SOFTWARE AS A SERVICE (SaaS) SOLUTIONS.
- ANY OTHER RELATED SERVICES THAT 42GEARS MAY PROVIDE TO YOU IN CONNECTION WITH SUCH SaaS SOLUTION EXCEPT THE PROFESSIONAL SERVICES WHICH SHALL BE GOVERNED BY A SEPARATE AGREEMENT
42GEARS RESERVE THE RIGHT TO MODIFY, ALTER AND AMEND THESE TERMS AND CONDITIONS AT ANY TIME AT ITS OWN DISCRETION, AND YOU AGREE TO ABIDE BY THE MOST RECENT VERSION OF THIS TERMS OF USE EACH TIME YOU VIEW THE NEW VERSION ON THE WEBSITE OR/AND USE OF THE SOFTWARE AS A SERVICE (SaaS) SOLUTIONS OR ITS CONTINUED USE/ACCESS.
TERMS OF USE FOR TRIAL VERSION OF SOFTWARE
If the Software is a trial version, then the following terms and conditions shall apply to Your Use of the trial version of the Software.
- TRIAL VERSION FEATURES
The trial license gives you a right to Use the Software with restricted functionalities and for only the evaluation purposes. - INSTALLATION AND USE OF TRIAL VERSION
The trial license lets you install one copy of the trial version on your Device. You may only Use the trial version for internal evaluation purposes during the trial period. You are not licensed to Use the trial version for any commercial purpose. The trial version is non-transferable, and you may not distribute, sub-license, or otherwise transfer it to any Third-Party. You are prohibited from modifying, disassembling, decompiling, or reverse-engineering the trial version of the Software in any manner. You may not reproduce, distribute, or make the trial version of the Software available for download on any Network or through any means of platform. The Licensor reserves the right to terminate the trial license of the Software at any time without prior notice at its own discretion or/and if you fail to comply with the terms of this Agreement. - TRIAL PERIOD
The trial period is for thirty (30) days from the date of installation of the Software on Your Device. - CONVERSION OF TRIAL VERSION TO FULL-USE VERSION
During the trial period of the Software, You will receive notification/s that You have the option to convert Your trial license of the Software at any time to the full- use License of the Software (described below) by making payment for a valid full-use License. - DISCLAIMER OF WARRANTY
THE TRIAL VERSION OF THE SOFTWARE IS LICENSED “AS-IS.” FURTHER THE LICENSOR GIVES NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS WITH RESPECT TO THE SOFTWARE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, LICENSOR EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. - LIMITATION ON AND EXCLUSION OF REMEDIES AND DAMAGES
YOU CANNOT CLAIM NOR RECOVER FROM THE LICENSOR ANY LOST PROFITS, LOSS OF DATA, CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES, STATUTORY OR COMMON LAW ATTORNEY FEES ARISING FROM THE BREACH OF CONTRACT, BREACH OF ANY WARRANTIES, GUARANTEES OR CONDITIONS, STRICT LIABILITY, NEGLIGENCE, OR OTHER TORT. TO THE EXTENT ALLOWED BY THE APPLICABLE LAW, YOU CANNOT RECOVER FROM THE LICENSOR AND ITS RESELLERS ANY KIND OF DAMAGES IN RESPECT OF THE USAGE OF THE TRIAL VERSION OF THE SOFTWARE. THIS LIMITATION APPLIES TO ANY USE OF THE TRIAL VERSION OF THE SOFTWARE EVEN IF THE LICENSOR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND/OR LOSSES.
-
- Licensor does not provide any type of Support Services for the trial version of the Software.
- Sections 2, 10, 13, 20 and 29, in the Full-Use License sections of this Agreement below do not apply to the trial version of the Software.
TERMS FOR FULL-USE LICENSE FOR THE SOFTWARE
The following terms and conditions apply when You acquire the Full-Use License (“License”) of the Software.
- DEFINITIONS
- “Licensee” means any legal entity or an individual who agrees to the terms and conditions of this Agreement and to whom the License is granted by 42Gears.
- “Authorized Users” means Licensee or/and any Third-Party individuals or any legal entities that are accessing the Software on behalf of the Licensee including but not limited to the employees of Licensee. Any access or use of the Software by any Authorized Users is considered use or access by Licensee.
- “Authorized Reseller/Distributor” means a Third-Party who is not our Affiliate and who is authorized by us or our Affiliate to resell or distribute Software to the Licensee.
- “Annual Support and Maintenance” means Technical Support and maintenance services offered by the Licensor, on an annual basis, including relevant Software Updates or/and Upgrades at the Licensor’s sole discretion.
- “Device” means any computing Device/instrument that is part of Licensee’s systems and/or Network, or that accesses, is managed or tracked by, or is authorized to access, the Software.
- “Documentation” means the overview of the Software features and functionality such as User guide, specifications or manual or any other Software-related information published at the website or provided with the Software (in an electronic or a written form) and as such revised and updated by the Licensor from time to time.
- “Effective Date” the date when the Licensee agrees to the terms and conditions of this EULA by signing up for an account for accessing and using the Software.
- “Licensee Data” means all data, information, files, links and other materials submitted to or collected by the Software. Licensee Data excludes Usage Data.
- “Usage Data” means all data collected or generated by 42Gears in connection with use of the Service or with Professional Services (including information related to Devices, Users’ use of the Service, Network monitoring, and analysis.) Usage Data does not include public keys, usernames, or User passwords, which are part of Licensee Data.
- “Licensee Network” means the hardware and Software components, including the Licensee’s machines, servers, and internetworking Devices within Licensee’s internal computer Network at the Licensee’s location.
- “Perpetual License” means the Software license provided on a perpetual basis for the use of Software.
- “Subscription License” means a Software license provided on a subscription basis for the Use of Software.
- “Quote” means a written quotation of Licensors’ Software provided to the Licensee by the Licensor, which is accepted by the Licensee and considered an “order” by signing and returning the quotation to the Licensor.
- “Software” means SureMDM, consisting of a server application hosted on the cloud, an agent application installed on Licensee’s mobile Device(s), and the associated Documentation, provided to Licensee by 42Gears pursuant to this Agreement, in object code format and any of the Upgrades and Updates, but excluding any Third-Party Software.
- “Software-related services” means service performed by the Licensor as reflected in Order such as installation, activation, training, Software configuration, modification, integration, reconfiguration, assessment, optimization, or other Software-related services and excludes professional services for the development of custom Software or other intellectual property (which would be governed by a separate agreement and applicable Fees).
- “Software Update” means any patches and modifications, enhancements, improvements, and revisions of the Software, including new releases of Software, made available by the Licensor at its discretion in regular intervals of time.
- “Third-Party Software” means Software that is created or developed by a Party other than the Licensor and includes open-source Software but excludes Third-Party libraries.
- “Website” means the website nominated from 42Gears Mobility Systems Private Limited from time to time, currently at www.42gears.com
- “Software Upgrades” means major releases of a Software that replace a prior version of that Software or any enhancement or improvement to the functionality of the Software but excluding any Software and/or upgrades marketed and licensed by 42Gears for a separate Fee.
- LICENSE GRANT
Subject to the terms and conditions of this Agreement, Licensor grants to Licensee a limited, revocable, non-sublicensable, non-exclusive, non-transferable, worldwide license, upon payment of applicable Fees for the Term stated herein to: (i) install the Software for which activation keys have been issued by Licensor; (ii) Use the Software, in accordance with the Documentation subject to applicable restrictions; (iii) install and Use the Software on the number of Devices the license is purchased for (this is not a concurrent Use license for Devices. Each license is assigned to an enrolled Device. A license can only be reassigned when the license is free to use); (iv) Licensee must ensure that the Software is not used by any person who is no longer authorized by the Licensee. The Software is licensed as a single product and shall not be used on more than one Device simultaneously. No implied license or right of any kind, and no patent license or right, is granted to Licensee under this Agreement. - RESTRICTIONS ON USE
Licensee shall not itself or authorize or permit any Third-Party including its Authorized Users to directly or indirectly:- sub-license, sell, rent, lease, assign, distribute, transmit, host, outsource the Software;
- 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;
- use the Software in any manner to provide service bureau, time-sharing or other computer services to Third-Parties;
- 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
- copy or replicate the Documentation provided in relation to the Software in any form;
- 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
- use the Software for competitive analysis (including to build a competitive product or Software), benchmarking, evaluating or viewing the Software or Documentation for the purpose of designing, modifying, or developing Software or services similar in purpose, scope, or function to the Software unless the same is notified to the Licensor in advance pursuant to the Agreement;
- remove, alter, or obscure any proprietary rights notices contained in or affixed to the Software or;
- knowingly or negligently access or use the Services in a manner that abuses or disrupts the Licensor’s Networks, security systems or attempt to disrupt, degrade, impair, or violate the integrity, security, or performance of the Software, including, without limitation, by executing any form of Network monitoring, the generation or dissemination of computer viruses, Trojan horses, time bombs, denial of service attacks;
- attempt to circumvent 42Gears access, security, or copyright protections;
- accessing or using the Software in a manner intended to avoid incurring fees or to exceed usage limits or quotas assigned by the Licensor;
- use of the Software in any manner that may harm minors or privacy and
- to transmit, store, or process of sensitive personal information, such as health and payment card information unless authorized by law.
- harvest, collect, or gather any Personal Data without the consent
If You do any of the foregoing, Your rights under this Agreement will automatically terminate. Such termination shall be in addition and not in lieu of any criminal, civil or other remedies available to 42Gears.
- MALWARE AND UNAUTHORIZED ACCESS
Licensee represents, warrants and covenants that Licensee will not cause or knowingly allow harmful Software to be stored on, transmitted, or used with the Software, including but not limited to, the generation or dissemination of computer viruses, Trojan horses, time bombs, denial of service attacks, key logging and other monitoring Software, worms, logic bombs, or other code or programs whose effect is to negatively impact the operation or performance of the Software or the safety, security, or privacy of users or owners of the Software, or to negatively impact the operation or performance of the wireless Networks with which the Software may interact (“Networks”) or to permit unauthorized use of or access to such Networks. Licensee may not knowingly use Software in any way that could cause harm to the Software or the Networks or impair their use by others. Licensee may not use Software to attempt unauthorized access to any service, system, data, account, or Network. - LICENSEE OBLIGATIONS
You acknowledge, agree, and warrant that: (i) You will be responsible for Your and Your Authorized Users activity and compliance with this Agreement, and if You become aware of any violation, You will immediately terminate the Authorized User’s access to the Software and Documentation and notify Licensor (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 the Documentation, including, but not limited to, the applicable local, state, federal, and international laws, including intellectual property, privacy and security laws; (iii) You will be solely responsible for the accuracy, quality, integrity, and legality of Licensee Data and of the means by which You acquired such data/information; (iv) use commercially reasonable efforts to prevent unauthorized access or use of the Software, and notify Licensor promptly of any such unauthorized access or Use; (v) shall be responsible for the security and privacy of any and all Software passwords, settings, and similar data.
If Licensee becomes aware or receives notice from Licensor that any Licensee’s data or any Authorized User’s access to or use of Licensee’s data violates this provision, the Licensee must take immediate action to remove the applicable part of the Licensee’s data or to suspend the access to the Services, as applicable. Provided Licensor does not allow the use of shared administrator accounts for sign-ups. Licensor strongly recommend you create your own unique account with a strong and secure password. This is to ensure the protection of yours/ your organization's data and to enable accurate tracking and identification of User actions by the Licensor. - COMMERCIAL LICENSES
The Software can be licensed as:- Perpetual License
A perpetual license gives the Licensee a right to use the licensed version of the Software perpetually pursuant to the terms and conditions of this Agreement. Perpetual license comprises Annual Support and Maintenance during the initial Term of twelve (12) months. Upon expiration of twelve (12) months, Annual Support and Maintenance along with relevant Software Update will be provided upon payment of the then-current price offered by the Licensor. - Subscription License
Subscription license gives the Licensee a right to use the Software (current or at any time the latest version) during the Term of the subscription. The License fee is inclusive of Software update; thus, Licensee will automatically receive relevant updates during the Term of the subscription. The Licensee's right to use the Software will be forfeit upon the expiry of the Term of the subscription or failure to comply with the terms and conditions stated herein in the Agreement.
- Perpetual License
- COPIES
Licensee may make a copy of the Software solely for backup, disaster recovery or archival purposes or system maintenance, ensuring the continued availability of the Software to Authorized Users or is otherwise expressly permitted by law. Any copy of the Software must clearly show all titles, trademark, copyright notices, legends, and other proprietary markings of the Licensor without any modifications.
Licensee recognizes that the Software and its Documentation are protected by copyright and other relevant proprietary laws. Licensor shall not be liable in the event of the loss of data where such loss is due to the Device malfunction, intentional act or omission, or negligence of the Licensee. Further, the Licensee shall be solely responsible for taking appropriate action to secure, protect, and back the data and account on the managed Devices. - LOCATION-BASED SERVICES
Some of the features of the Software may enable a Licensor to access Your location in order to customize your experience with the Service based on your location (“Location-based Services”). In order to use certain Location-based Services, you must enable certain features of your Device such as GPS, Wi-Fi, and Bluetooth, which enables the Licensor to identify Your location through a variety of means, including GPS location, IP address, geo-fencing technology, as available. The Location-based Services feature in the Software is powered by Google Maps (You need to verify and agree with Third-Party privacy policies and Terms of Use for which the Licensor shall not be liable in any manner whatsoever), and You agree and acknowledge that (i) Device data we collect from You is directly relevant to Your use of the Service, (ii) Licensor may provide Location-based Services related to and based on Your then-current location or the history of the stored data in accordance with the Software plan purchased, and (iii) Licensor may use any such information collected in connection with the provision of the Location-based Services only in pursuance of providing the services herein.
PLEASE NOTE THAT LOCATION DATA MAY NOT ALWAYS BE ACCURATE, AND LICENSOR DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION-BASED SERVICES. FURTHER YOU HEREBY CONSENT TO THE COLLECTION, TRANSMISSION AND USE OF LOCATION DATA IN CASE YOU ENABLE USE OR ACCESS SUCH LOCATION-BASED SERVICES. - OWNERSHIP AND RESERVATION OF RIGHTS
42Gears grants no ownership rights to Licensee 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). Licensee hereby irrevocably assigns and agrees to assign all of Licensee’s right, title, and interest in and to any Feedback to 42Gears. To the extent such Feedback cannot be assigned, Licensee hereby grants and agrees to grant to 42Gears at no charge a perpetual, irrevocable, royalty-free, worldwide right to use, reproduce, disclose, sub-license, distribute, modify, and otherwise exploit the Feedback without restriction. By signing this Agreement, Licensee irrevocably acknowledges that, subject to the rights granted herein, Licensee has no ownership interest in the Software provided to Licensee. 42Gears shall own all right, title, and interest in such Software/(s), subject to any limitations associated with intellectual property rights of Third-Parties. - SYSTEM REQUIREMENTS
Licensee acknowledges and agrees that the Software may only be installed and used only on Devices, which meets or exceeds the minimum system requirements identified and notified by the Licensor to Licensee from time to time. Licensee acknowledges and agrees that it is solely responsible for obtaining, installing, operating, and maintaining all hardware, other equipment and Third-Party Software required for use of the Software. All functionality, operating system, Network services including but not limited to Wi-Fi Services, Cellular data, hardware maintenance and data backup are the responsibility of the Licensee.
Licensee acknowledges that many features, built-in apps, and services of the Software transmit data could impact charges to Licensee’s data plan, and that Licensee is responsible for any such charges.
- Licensee Data
- The Licensee shall retain ownership of the Licensee Data at all times.
- Unless 42Gears has direct obligations under data protection laws, the Licensee acknowledges that 42Gears does not control any Licensee Data hosted as part of the Software and may not actively monitor or access its content. The Licensee is solely responsible for ensuring the accuracy, quality, integrity, and legality of the Licensee Data and must ensure that its use, including in connection with the Software, complies with all applicable laws and intellectual property rights.
- If 42Gears becomes aware of any claim that the Licensee Data may violate the terms of this Agreement, 42Gears has the right to permanently delete, remove, or suspend access to any such data from the Software, or disclose it to law enforcement authorities, without consulting the Licensee. Where reasonably practicable and lawful, 42Gears will notify the Licensee before taking such action.
- Unless otherwise stated in this Agreement, 42Gears is not required to assist the Licensee in extracting, transferring, or recovering any data during or after the Software Service period. The Licensee acknowledges and agrees that they are responsible for maintaining secure backups and copies of their data to ensure business continuity. The Licensee must regularly back up all their data according to their needs and extract it from the Software before the termination or expiry of this Agreement, or before any cessation or suspension of the Software.
- 42Gears regularly performs backups of the Software, which may include Licensee Data, to ensure its own business continuity. The Licensee acknowledges that these actions do not make 42Gears responsible for preventing the Licensee Data from becoming inaccessible, damaged, or corrupted. To the fullest extent allowed by applicable law, 42Gears shall not be liable (under any legal theory, including negligence) for any loss of availability, corruption, or damage to the Licensee Data.
- Licensee Data
- USAGE DATA
Customer acknowledges and agrees that provision of the Service involves, and Customer authorizes, 42Gears to: (a) process the Licensee Data and Usage Data in connection with providing the Service, to assist Customer in using the Service, and as described in this Agreement; (b) use of Usage Data in connection with providing, analyzing, and improving the Service; and (c) generate and use of de-identified, aggregated, and/or anonymized data that does not include any identifying information of, or reasonably permit the identification of, Customer or any individual (including any User).42Gears will comply with applicable statutory requirements with respect to the Usage Data. - UPGRADES AND UPDATES
42Gears reserves the right to extend, enhance, or modify the Software through version upgrades or updates at any time. If 42Gears provides any such upgrades or updates, they will be governed by this Agreement unless a separate license accompanies the upgrades or updates, in which case that license will apply. Further, 42Gears will make commercially reasonable efforts to notify the Licensee of any upgrades or updates, including but not limited to posting notices on www.42gears.com or similar platforms. Upgrades or updates may introduce APIs, features, services, and functionalities that differ from those in the Software originally licensed under this Agreement. No upgrades or updates will be pushed to any Devices without the Licensee's approval. - PROTECTION AND SECURITY
Licensee shall implement appropriate security measures to prevent unauthorized access to the Software and license key(s), including but not limited to password protection, encryption, and access controls. Licensee shall comply with all applicable laws, regulations, and industry standards related to the protection and use of Software and intellectual property rights.
The obligations under this clause shall survive the termination or expiration of this Agreement. - THIRD-PARTY SOFTWARE
The Software may incorporate or access Third-Party Software and services. Licensee agrees to and must ensure all users comply with all applicable terms and conditions for the Third-Party Software at all times. To the maximum 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 shall 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.
Additionally the Software may also contain or include Third-Party libraries as provided in the following webpage: https://www.42gears.com/third-party-libraries-terms/LibraryNames.html for which Licensor holds the entire responsibility and legal obligations related thereof. - 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 provision. 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 as 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 by 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 after cooperating with Disclosing Party in seeking to limit such disclosure to the maximum extent possible under the circumstances. Recipient shall promptly return or destroy all Confidential Information and any copies thereof upon the request of the Disclosing Party or upon termination of this Agreement, except as otherwise required by applicable laws or regulations.- 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, or subsequently enters the public domain through no wrongful act or omission of the Recipient; (b) becomes part of the public domain after the time of disclosure, through no improper action of the Recipient; (c) was in Recipient's possession free of any obligation of confidence at the time of the Disclosing Party's communication thereof to the 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, through written consent or authorization. Recipient shall use any Confidential Information received (or derivatives thereof) solely for the purpose of performing its obligations under this Agreement and for no other purpose without the prior written consent of the Disclosing Party. Recipient shall take all necessary measures to ensure that its employees, agents, contractors, and representatives are made aware of and they shall comply with the obligations set forth in this provision. Any breach of this confidentiality obligation shall constitute a material breach of this Agreement, entitling the Disclosing Party to seek injunctive relief, as well as any other available legal remedies. - Return/ Deletion of Confidential Information
All Disclosing Party’s Confidential Information and derivatives thereof shall remain the property of the Disclosing Party and will be deleted or returned to the Disclosing Party within sixty (60) days following the termination of this Agreement. 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 including social media platforms, industry conferences, or public presentations. Licensee shall take all necessary precautions to prevent unauthorized disclosure or use of 42Gears' Confidential Information, including implementing appropriate security measures and training its employees, agents, contractors, and representatives on the importance of confidentiality.
- Exclusions to Confidential Information
- FEES AND PAYMENT
Fees: The monthly subscription fees 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 reserves the right to, at its sole discretion, offer discounts, at its discretion, in case Customer makes a bulk purchase of the Software for use in multiple Devices by the Customer.
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 Customer acknowledges and agrees that the applicable fees for accessing the commercial version of the Software are due and payable prior to gaining access to the Software. In case Customer is approved a payment credit period by 42Gears in writing, Customer has to pay the fees due within the credit period. Failure to remit the applicable fees within the specified timeframe may result in the suspension or termination of access to the Software, at the discretion of 42Gears. In addition to any other remedies available under this Agreement or at law, 42Gears reserves the right to impose late fees or interest on overdue payments, as permitted by the applicable laws. The Customer shall be responsible for ensuring the timely payment of all fees, regardless of any invoicing or billing arrangements made by 42Gears. Furthermore, the Customer shall promptly notify 42Gears of any discrepancies or disputes regarding invoicing or billing statements. 42Gears reserves the right to amend and modify the payment terms or impose additional payment requirements upon reasonable notice to the Customer. Any such modifications shall be binding upon the Customer upon the renewal or extension of the subscription Term. The Customer agrees to provide accurate and up-to-date payment information and authorize 42Gears to charge the designated payment method for all applicable fees and charges. Failure to maintain valid payment information may result in the suspension or termination of access to the Software.
This provision shall survive the termination or expiration of this Agreement and shall continue to govern any outstanding payment obligations of the Customer. - TAXES
Any applicable license or other fees payable by Licensee under this EULA 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. The Licensee acknowledges and agrees that it shall be responsible for determining the applicability of any Taxes to the fees payable under this EULA and for complying with all applicable tax laws and regulations. The Licensee agrees to indemnify and hold harmless the Licensor from and against any and all claims, liabilities, losses, damages, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to any Taxes imposed on the supply of the Software or any services under this EULA, except to the extent such Taxes result from the gross negligence or willful misconduct of the Licensor.
This provision shall survive the termination or expiration of this EULA and shall continue to apply to any outstanding payment obligations of the Licensee. - AUDIT
To the extent permitted by applicable law, Licensor may, either itself or through an independent Third-Party auditor, audit Licensee’s Use of the Software to verify that Your use of the Software is in compliance with this Agreement and this audit shall be conducted not more than once per year, with prior written notice to Licensee. Licensor will protect Confidential Information obtained during the performance of the audit subject to clause 15 (“OBLIGATIONS TO CONFIDENTIAL INFORMATION”) of this Agreement.
During the audit process, the Licensor and its appointed auditor shall have the right to access and inspect any relevant records, systems, and facilities used by the Licensee in connection with the Software. The Licensee agrees to reasonably cooperate with the audit and provide any necessary assistance, including but not limited to providing access to personnel and Documentation.
In the event that the audit reveals any non-compliance with the terms of this Agreement, the Licensee shall promptly take all necessary remedial actions as directed by the Licensor. Failure to rectify any non-compliance within a reasonable timeframe may result in the imposition of additional fees, penalties, or termination of this Agreement, at the sole discretion of the Licensor.
The Licensee acknowledges and agrees that any costs associated with the audit, including the fees of the independent third-party auditor, shall be borne by the Licensee unless the audit reveals material non-compliance, in which case such costs shall be borne by the Licensor. - THIRD-PARTY CLAIMS
In the event that any Third-Party alleges, or if the Licensor has reasonable grounds to believe, that the use of the Software under this Agreement may infringe or otherwise violate the intellectual property rights of any third person who is not privy to this Agreement, then Licensor may, at its discretion, take the following actions:- Suspension of License
Temporarily suspend the Licensee's license to use the Software until the infringement issue is resolved. The Licensor agrees to notify the Licensee promptly of any such suspension. - Resolution Options
Upon determining that there is a potential infringement, the Licensor may, at its discretion, undertake one or more of the following actions to resolve the issue:
- Modification of the Software:
Replace, modify, or rework the Software, in whole or in part, at the Licensor's expense, to eliminate the alleged infringement while ensuring that the Software continues to meet the agreed specifications and functionality. - Procurement of Rights:
Procure, at the Licensor’s expense, the necessary rights for the Licensee to continue using the Software in accordance with the terms of this Agreement without infringement. - Alternative Solutions:
Offer the Licensee a substitute or alternative Software solution that is non-infringing, of equivalent functionality, and acceptable to the Licensee. If no such solution is feasible, the Licensor may terminate the Agreement according to the termination provisions herein, with any pre-paid fees for the unused portion of the Term to be refunded to the Licensee.
- Modification of the Software:
- Suspension of License
- OWNERSHIP RIGHTS
- Ownership and No Transfer of Title
This License grants no title or ownership rights to the Licensee and shall not be construed as a sale or transfer of any intellectual property rights in the Software (including Enhancements and Upgrades) or the Documentation or any part thereof. The Licensor shall own and retain sole ownership of all rights, title, and interest in and to (i) the Software and any copies thereof regardless of the form or medium in which they are expressed or stored; (ii) the Documentation and any copies thereof; (iii) any ideas, suggestions, or Feedback provided by the Licensee or any User of the Software and Documentation (“Feedback”); and (iv) all intellectual property rights embodied within the foregoing items (i)-(iii) including but not limited to patents, copyrights, trademarks, trade secrets, and other proprietary rights. Licensee hereby irrevocably assigns and agrees to assign all of Licensee’s right, title, and interest in and to any Feedback to Licensor.
- Feedback and Assignment
Licensee hereby grants and agrees to grant to Licensor at no charge, a perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sub-license, distribute, modify, and otherwise exploit the Feedback without any restriction. - Acknowledgment of Licensor’s Rights
The Licensee acknowledges that the Licensor’s ownership of the rights, title, and interest in the Software, Documentation, and Feedback is fundamental to this Agreement. The Licensee agrees not to take any action that might jeopardize, limit, or interfere in any manner with the Licensor's ownership of or rights with respect to the Software, Documentation, or Feedback.
- Ownership and No Transfer of Title
- TECHNICAL SUPPORT
- Provision of Support
Licensor will provide Technical Support (“Support Services”) as listed in Annexure A hereto for the duration of the subscription Term.. Upon termination or expiration of the license, the Licensor's obligation to provide such Support Services shall cease immediately. - Scope of Support Services
The Support Services shall include, but not be limited to, the provision of Software updates, security patches, bug fixes, and email or telephone support, as further described in Annexure A. The specific availability, response times, and limitations of such Support Services shall be as delineated in Annexure A. - Adjustments to Support Services
- The Licensor reserves the right to modify or discontinue any aspect of the Support Services offered, provided that such changes do not materially diminish the functionality or performance of the Support Services during the Term for which they have been purchased.
- Any significant modifications to the Support Services will be communicated to the Licensee in writing at least sixty (60) days prior to the implementation of such changes.
- Maintenance and Service Availability
From time to time, Licensor 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. The purpose of scheduled maintenance is to ensure the optimal performance, security, and reliability of the Service. Licensee acknowledges that, in certain situations, Licensor may need to perform emergency maintenance of the service without providing prior written notice. The Licensor reserves the right to modify the maintenance policies outlined in this clause to adapt to evolving service requirements and technological advancements. The Licensor will provide the Licensee with notice of any significant changes to these policies. - Exclusions to Technical Support
Licensor’s Technical Support do not include the rectification of errors, defects or problems caused or contributed to by:- default or negligence of Licensee.
- improper or unauthorized use of the Software.
- any modifications or alterations of the Software other than as approved by the Licensor or by any person other than the Licensor.
- any failure by Licensee to comply with the Documentation.
- any failure by Licensee to download and install updates made available on the Licensor’s website.
- any failure by Licensee to comply with any reasonable guidelines or instructions provided by the Licensor.
- any fault, defect, omission or error in any data, Software or equipment not supplied by the Licensor.
- any failure arising out of any Network (including the internet) or communications; or
- use of the Software with any Software or equipment not approved or recommended by the Licensor, or in a manner or for a purpose in breach of this EULA or not reasonably contemplated by this EULA.The Licensor reserves the right to charge Licensee’ additional fees (at its then-current rates) for the rectification of any errors, defects or problems caused or contributed to by any of the reasons listed above.
Licensor shall have no obligation to provide Software, Software versions, features, functionalities and/or may cease providing related support and maintenance in the case of or with respect to any incident that is in whole or in part due to, caused by, or resulting from any changes or variations in any Third-Party support which is not within the direct control of the Licensor including but not limited to the Third-Party Software and maintenance support, hardware maintenance, platform limitations affecting functionality such as OEM and operating systems and others.
In the event of any material change due to the Third-Party support, Licensor will use all its commercially reasonable efforts; to restore the affected services as soon as possible and upon Licensor’s failure to do so, the Licensee’s sole remedy shall be to terminate the Agreement as contemplated in this Agreement.
- Provision of Support
- DISCONTINUATION OF SOFTWARE VERSION AND SUPPORT
42Gears reserves the right to discontinue maintenance, updates, and security patching for product versions that have reached their end-of-life. In such event, the Licensor shall provide the Licensee with written notice prior to the cessation of support. Upon the expiration of the notice period, Licensor shall revoke Licensee’s access to the discontinued version and shall, at no additional cost to the Licensee, upgrade the Software to a current version of the product.
The Licensee acknowledges and agrees that 42Gears shall not be held liable for any issues, including, without limitation, security vulnerabilities, compatibility issues, or loss of functionality, arising from the Company’s continued use of any version of the product that is no longer supported. - LIMITED LIABILITY
Licensor hereby warrants that to its knowledge it has the necessary rights and title to license the Software to the Licensee. Further, the Licensor warrants that the Software will perform in accordance with the applicable Service Level Agreement (“SLA”), if provided any, and that the Software has at all times been used in accordance with the Agreement. Further, the Licensor warrants that the service will be performed substantially in accordance with the Documentation and other specifications provided by the Licensor from time to time. In case, the Licensor fails to meet this limited warranty, the sole and exclusive remedy for that failure is as specified in the SLA. In case, no SLA is signed between the Licensor and the Licensee, the clause 18 (“TECHNICAL SUPPORT”) of this Agreement shall apply to provide the adequate Technical Support as detailed therein. DISCLAIMER OF WARRANTIES: EXCEPT AS EXPRESSLY STATED IN THE AFOREMENTIONED CLAUSE, THE LICENSEE ASSUMES THE ENTIRE RISK AS TO THE USE, QUALITY AND PERFORMANCE OF THE SOFTWARE. THE SOFTWARE AND THE ACCOMPANYING WRITTEN MATERIALS (DOCUMENTATION) ARE PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND WHETHER EXPRESS OR IMPLIED. LICENSOR 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 LICENSOR, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY AND THE LICENSEE MAY NOT RELY UPON SUCH INFORMATION OR ADVICE FROM ANY THIRD-PARTY. LICENSOR IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION, OR SECURITY OF THE SOFTWARE THAT MAY ARISE FROM LICENSEE’ ACTS OR OMISSIONS, THIRD-PARTY SERVICES. FURTHER, LICENSOR DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY INTERCEPTION OR INTERRUPTION OF ANY COMMUNICATIONS THROUGH THE INTERNET, NETWORKS, OR SYSTEMS OUTSIDE THE LICENSOR’S CONTROL. 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. NEITHER WILL LICENSOR 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 THE LICENSEE, ALLEGED OR ACTUAL NEGLIGENT ACTS OR OMISSIONS, WILLFUL MISCONDUCT, FRAUD OR FAILURE OF THE SOFTWARE DUE TO THIRD PARTIES SOFTWARE OR THE LICENSEE’S COMPUTER NETWORK. IN ANY CASE, EITHER PARTY 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 THE 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.AUSTRALIAN CONSUMERS: IF YOU ARE A “CONSUMER/LICENSEE” UNDER THE AUSTRALIAN CONSUMER/LICENSEE 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. - INFRINGEMENT INDEMNITY
Licensor will defend and pay the costs and damages awarded by a court of final jurisdiction arising from any Third-Party claims brought against Licensee claiming that the Software infringes any patent, trademark, or copyright infringement of a Third-Party or constitutes misuse or misappropriation of a trade secret.Exclusions: Licensor shall have no liability under this Section unless (a) Licensee notifies Licensor in writing immediately after Licensee becomes aware of a claim or the possibility thereof; (b) Licensor has sole control of the settlement, compromise, negotiation, and defense of any such action; and (c) Licensee cooperates, in good faith, in the defense of any such legal action. Licensee may retain its own counsel at Licensee’s own expense.You further acknowledge and agree that Licensor shall not be responsible for any loss, damage or injury suffered by You and Your Authorized Users arising out of or in connection with the Software or use thereof, and agree to indemnify and hold harmless Licensor 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 EULA; (ii) Your Authorized Users' use 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 EULA; (iv) your violation of law, including but not limited to any law or regulation relating to the privacy and/or security of your Authorized Users and their Devices (v) failure of You to use the most recent version of the Software (including any Updates or Upgrades provided to You by 42Gears). - TRAINING
Licensor does not provide training for the use of the Software unless requested by Licensee or otherwise provided by this EULA. To the extent the Licensor 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 shall be invoiced to the Customer. - AUTHORIZED RESELLERS AND DISTRIBUTORS
Where separately agreed, Licensee may purchase Software license and other software hereunder from Licensors’ authorized reseller and distributors (“Authorized Parties”), in which all the payments shall be to the Authorized Parties under the terms agreed between the Licensee and the Authorized Parties. Where Licensee purchases any Software hereunder through Authorized Parties, any credits, refunds set forth herein shall not apply to the extent the Licensee has paid the relevant fees directly to the Authorized Parties.In the event, the Authorized Parties files for bankruptcy protection; sells all or substantially all of its assets; ceases to do business in the ordinary course of manner; or if the Licensee otherwise desires to do so, Licensee may purchase any Software as set forth in this EULA directly from the Licensor. In the event, the Licensee purchases the Software or Licensors’ other softwares through the Authorized Party has granted Licensee rights not granted in this EULA, Licensees’ sole course of action in the event of a dispute regarding those rights shall be against the Authorized Parties. 42Gears shall have no liability towards the Licensee whatsoever for any acts or omissions of the Authorized Parties.
Licensor’s Authorized Parties do not have the right to make modifications, alterations, and amendments to this Agreement or to make any additional representations, commitments, or warranties binding on the Licensor with respect to this Software under this Agreement. The Licensee is encouraged to promptly notify the Licensor of any such occurrences for rectification. - NO LIABILITY
Licensor shall have no liability for any claim of infringement based on (i) Software which has been modified by Parties other than Licensor or Parties not authorized by the Licensor; (ii) Licensee’s Use of the Software in combination with data where use with such data gave rise to the infringement claim; or (iii) Licensee’s Use of the Software with non-Licensor Software or hardware, where use with such other Software or hardware gave rise to the infringement claim and (iv) Licensee’s breach of this Agreement and the Documentation.Remedies: If in Licensor’s opinion, the Software becomes or is likely to become, the subject of a claim of infringement, Licensor may, at its option, (i) obtain the right for Licensor to continue using the Software; (ii) replace or modify the Software so it is no longer infringing; or (iii) if (i) and (ii) are not commercially reasonable and feasible, terminate the License for the Software. Upon such termination of the License and Licensee’s return of the Software, Licensor shall refund to Licensee, as Licensee’s sole remedy for such license termination, all license fees paid by Licensee for the terminated License. This provision states the entire liability of the Licensor with respect to any claim of infringement regarding the Software under this EULA.
Injunctive Relief: Nothing in this EULA limits either Party’s ability to seek equitable relief. - TERM, TERMINATION AND SUSPENSION
The Agreement shall commence on the date the Licensee agrees to the terms and conditions of this Agreement by clicking the “I Accept” button and downloading/installing the Software and continuing until the perpetual or subscription licenses granted in accordance with the Agreement have expired or been terminated for any reason. Wherein the Licensee uses the Software for a free trial period and does not purchase a perpetual or subscription license before the end of that period, then the Agreement shall terminate at the end of the free trial period. If You purchase an auto-renewing subscription, then Your purchase constitutes Your Agreement to auto-renewal for the same Term as initially purchased.- Termination by Licensee: Licensee may terminate this EULA at any time by giving thirty (30) days written notice to the Licensor and complying with the conditions of this provision.
- Termination by Licensor: Licensor may terminate this EULA immediately by giving written notice to Licensee if:
- Licensee fails to pay any Fees which are due and payable under this EULA within thirty (30) days of serving the notice; or
- Licensee fails to comply with any terms or conditions of this EULA; or
- Licensee becomes bankrupt or insolvent; or
- Licensor is required to do so by law (for example where the provision of the Software or Support and Maintenance to Licensee is or becomes unlawful).
- Consequences of Termination: Upon termination or expiry of this EULA for any reason the Licensee must:
- immediately pay any outstanding amounts owed to Licensor under this EULA and with respect to any License under a Subscription, all remaining subscription fee installments over the subscription period;
- remove the Software from each server and each Device or terminal on which it is installed;
- cease all use or exploitation of any intellectual property or Confidential Information of Licensor relating to the Software; and
- deliver 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, the termination of this Agreement shall not limit Licensor rights or remedies at law or in equity in case of breach by You (during the Term of this Agreement) of any of Your obligations as provided in this EULA.
In no event shall any termination relieve the Licensee of the obligation to pay any fees payable to 42Gears or its respective authorized representative(s) for the period prior to the effective date of termination.
- immediately pay any outstanding amounts owed to Licensor under this EULA and with respect to any License under a Subscription, all remaining subscription fee installments over the subscription period;
- Suspension of Services:
In addition to the termination rights and without limiting Licensor’s other rights and remedies under this EULA, 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 thirty (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 shall remain responsible for all the 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.
- SURVIVAL CLAUSE
Expiry or termination of this EULA for any reason does not affect the rights and obligations of either Party arising prior to the termination. The following provisions, together with any other terms necessary for the interpretation or enforcement of this Agreement, will survive termination or expiration of this Agreement: 1 (Definitions), 9 (Ownership Rights), 15 (Confidentiality), 16 and 17 (Fees, Payment, and Taxes), 23 (Warranties; Disclaimers; Limitation of Liability), Indemnification, 28 (d) (Consequences of Termination), and 40 (General). - COMPLIANCE
Licensee must ensure that Licensee and its Authorized Users comply with the obligations under this EULA and shared model responsibility (https://www.42gears.com/trust-center/security-and-transparency/shared-responsibility-model/). Licensee will duly observe all of its obligations under any relevant data protection law or regulation that may apply to the relationships contemplated under this EULA, including specifically, any obligation for Licensee to configure the Software and/or hosted service in accordance with all applicable laws and regulations.
- DATA SECURITY AND PRIVACY
Licensee data will always be handled according to 42Gears’s Privacy Notice, which is included by reference in this Agreement and can be viewed at https://www.42gears.com/trust-center/privacy/privacy-policy/. If any provision of 42Gears’s Privacy Notice conflicts with this Agreement, the terms of this Agreement will take precedence. Despite the terms of 42Gears’s Privacy Notice, 42Gears shall comply with all relevant privacy protection laws and data protection regulations when collecting, processing, recording, storing, registering, disclosing, transferring, and using data (including Personal Data) and maintaining records as applicable to us. 42Gears will only undertake these activities as necessary to fulfill its obligations under this Agreement and in accordance with Canadian, EU, U.S. federal and state, and international privacy and data protection laws and regulations as applicable to us. Each Party shall comply with its respective obligations under applicable data protection legislation and will maintain appropriate administrative, physical, technical and organizational measures that provide an appropriate level of security for Confidential Information and Personal Data including Licensee Data. When Licensor processes Personal Data on Your behalf to provide the Software, You expressly agree that You are the data controller (and Licensor, the data processor) and shall determine the purpose and manner in which such Personal Data is, or will be processed.
You acknowledge and agree that Licensor shall deal with the Licensee Data as per the Data Processing Addendum (https://www.42gears.com/trust-center/legal/data-processing-addendum-agreement/) which is a part and parcel of this Agreement.Please note that some features in the Software may enable collection of data from Licensee and its Authorized Users that access or use the Software. If Licensee uses these features to enable data collection in Licensee’s applications, Licensee must comply with applicable law, including obtaining any required End User consent, and maintain a prominent privacy policy that accurately informs end users about how Licensee uses, collects, and shares End User data. - SOFTWARE OPERATION DISCLAIMER
You are aware that the function and the usage of the Software provided by the Licensor hereunder is to configure which applications and Device features can be used by the Authorized User in the requisite Devices such as Android, iOS and any other operating systems. The use of Software may cause the emergency call/emergency dial feature to cease to operate in the Device on which the Software is installed. 42Gears is not aware of Licensee’s intended use and function of the Software and does not make any representation and assertions that the Software will meet all the requirements of the Licensee. Licensee alone is responsible to determine the Software’s suitability for Licensee’s intended usage and function. 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 and function which reasonably is expected to result in a physical injury, or in loss of tangible and intangible property, or loss of life; without the expressed written permission from Licensor. Licensor shall not be responsible for any excessive data usage due to any Authorized User action or application error in the Software. The Licensee confirms that its decision to purchase the Software was not made in reliance on the future availability of new Products, additional features, components, or versions of the Software, nor on any oral or written statements made by the Licensor about potential future functionality or features. Notwithstanding anything to the contrary in this Agreement, the Licensor shall not be liable for any damages (direct, indirect, punitive or consequential) arising from any 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 the Licensor regarding future functionality or features. - CVE DASHBOARD FEATURES
The CVE (Common Vulnerabilities and Exposures) Dashboard facilitates the detection of vulnerabilities and deploys patches provided by Microsoft to enhance Device security.Notwithstanding the foregoing, Licensor does not warrant or represent that Devices patched through the CVE Dashboard will remain free from future vulnerabilities or that they will be completely secure following the application of patches or the vulnerabilities highlighted are accurate and updated. All processes related to the identification of vulnerabilities and the deployment of patches are conducted in accordance with Microsoft's recommendations and established industry best practices. Licensor does not guarantee the timeliness of patch deployment, as the availability of patches is subject to Microsoft's release schedule and other factors beyond the Licensor's control.Licensee acknowledge and agree that the use of the CVE Dashboard feature does not constitute a warranty or guarantee of comprehensive security and accuracy, and Licensor shall not be held liable in any manner for any security breaches or vulnerabilities that may occur despite the use of this feature. Furthermore, the Licensee agrees to hold the Licensor harmless from any claims, damages, or losses arising from the use of the CVE Dashboard feature. - MARKETING
Unless You provide us with any 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). The Licensee also permits Licensor to bring out press releases and shall be open to provide endorsement quotes for Licensor’s marketing purposes, provided Licensor obtains prior written approval on such press releases and quotation. - USAGE OF SOFTWARE
The Licensee acknowledges and agrees that the Licensor offers and licenses the Software online in accordance with the Licensor’s applicable laws and government regulations. The Licensee warrants that the Licensee will comply with Licensee’s applicable laws in downloading and/or using the Software pursuant to this Agreement. The Licensee further warrants that it shall not use the Software (i) either in its entirety or (ii) any features or functionalities of the Software, if the Software or any feature and 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, subcontractors and agents from any Third-Party claims, losses, damages or penalties (including reasonable attorney fees) arising from the Licensee’s breach of these warranties. - THIRD-PARTY SITE AND APPS
The Licensed Software may include access to Third-Party websites or applications that are neither owned nor controlled by 42Gears. These third-party services are governed by their respective terms of service and privacy policies. As 42Gears does not manage or operate these external websites and applications, it assumes no responsibility for their content, functionality, or any issues that may arise from their use. Any interactions with third-party providers are solely between the End User and the respective provider.42Gears disclaims all liability associated with the use of third-party websites or applications and does not provide any endorsements, guarantees, or assurances regarding their reliability or performance. Additionally, 42Gears will not indemnify users for any claims, damages, or losses incurred due to the use of third-party services.Furthermore, any service downtime affecting the Products caused by third-party service provider failures will not be considered under the Service Uptime Commitment, regardless of any contrary provisions in this Agreement. - EULA APPLIES TO UPDATES
The Licensor may, at any time, extend, enhance, or otherwise modify the Software by way of a version upgrade or an update. All such Updates or Upgrades shall be governed by this Agreement (unless a separate license is provided with the upgrades or updates, in which case the terms and conditions of that License shall govern the upgrades or updates). The Licensor shall use its commercially reasonable efforts to notify Licensee of, or announce, any upgrades or updates (for clarity, such notification or announcement includes, without limitation, a notice posted at www.42gears.com). Where upgrades or updates are made available, such upgrades or updates may have APIs, features, services and/or functionality that are different from those found in the Software licensed under this Agreement. However, no upgrades or updates shall be implemented to any Device without the prior written approval from the Licensee. Such approval may be provided through electronic means considered legally valid, such as email or a digital consent form. - TECHNOLOGY EXPORT AND COMPLIANCE
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 strict compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, the 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 or comprehensive trade sanctions (as of the Effective Date, this list includes Cuba, Iran, North Korea, Sudan, and Syria). The Licensee acknowledges that the list of embargoed countries is subject to change. The Licensee agrees to regularly review and comply with the current list of countries subject to United States embargoes and trade sanctions, as updated and published by the United States government.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, the Licensee is solely responsible for any 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. Further details are available here.Each Party agrees to comply with all laws applicable to the actions and obligations contemplated by this Agreement. Each Party warrants that, during the Term of this Agreement, neither Party nor any of its officers, employees, agents, representatives, contractors, intermediaries, or any other person or entity acting on its behalf 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) Prevention of Corruption Act 1988 (PCA)(d) any other applicable anti-bribery and corruption laws or regulations anywhere in the world. Each Party commits to maintain effective systems and controls to prevent, monitor, and report any actions or activities that could contravene the aforementioned laws and regulations. Each Party agrees to conduct due diligence on its officers, employees, agents, representatives, contractors, and intermediaries to ensure compliance with this clause. Each Party shall immediately notify the other upon becoming aware of any violation or potential violation of the warranties provided in this clause. In the event of a violation, the responsible Party agrees to take all necessary remedial actions, including cooperating with relevant authorities, to rectify such violation. - GENERAL
- Entire Agreement Clause
This EULA constitutes the entire Agreement between the Licensor and the Licensee in relation to this subject matter and any prior representations, statements 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 and conditions 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 and amend the terms and conditions of this EULA from time to time and any such modifications and amendments shall take effect once published on Licensor’s website or otherwise notified to the Licensee. - Severance
If any provision of this EULA is declared illegal or unenforceable by a competent court of jurisdiction, then such provision is to be severed from this EULA and all other provisions of this EULA shall remain in full force and effect. - Waiver
Any delay or failure by the Licensor in enforcing its rights under this EULA is not to be construed as a waiver of those rights. - Assignment
The Licensee may not assign, sub-contract or otherwise transfer any of the Licensee’s rights or obligations under this EULA unless the Licensor has given its prior written consent. - Force Majeure
Except for the 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 other Party claiming relief under this provision, 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 the 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 prior written notice to the other Party specifying the nature of the dispute and the Parties’ authorized 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, You are contracting with 42Gears Inc. and 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 in United States of America.If you are a resident of India, then this Agreement shall be governed by and interpreted in all respects by the laws of the Republic of India without any reference to its conflict of laws’ principles and you agree to submit to the personal jurisdiction of the courts in Bengaluru, Karnataka, India.If you are a resident of the United Kingdom or European Union, You are contracting with 42Gears UK Limited and this Agreement shall be governed by and interpreted in all respects by the laws of England and Wales without any reference to the conflict of laws' principles and You agree to submit to the exclusive jurisdiction of the courts in England and Wales in United Kingdom.If You are a resident of any other country, You are contracting with 42Gears Private Limited this Agreement shall be governed by and interpreted in all respects by the laws of the Republic of India without any reference to conflict of laws' principles and You agree to submit to the personal jurisdiction of the courts in Bengaluru, Karnataka, India.
- Entire Agreement Clause
ANNEXURE A
Upon payment of the applicable fees for a valid License, the Licensor shall provide technical support (“Technical Support”) as follows:
- Availability: Technical Support is available twenty-four (24) hours a day, seven (7) days a week - 24/7 subject to the terms of this Agreement
- Nature of support: Technical Support shall include assistance with the installation, maintenance and Software upgrades related to the Licensed Software. It is expressly understood that bug fixing is not included as a part of Technical Support and is out of scope under this Agreement.
- Licensee may request Technical Support through the following channels:
- Ticket submission: Licensee can submit a support ticket at: Submit a Ticket here: https://www.42gears.com/submit-a-ticket/
- Live Chat Live chat support is available at here: https://www.42gears.com/chat/
- Telephone Support:
Phone: Americas: +1-424-284-2574 | Europe/Africa: +44-161-394-0338 | APAC/Middle East: +91-80-61957000 - Knowledge Base: Licensees are encouraged to consult the Licensor's Knowledge Base at https://knowledgebase.42gears.com for self-help resources.
Last Updated: December 24, 2024
Version 6.0