THIS AGREEMENT APPLIES TO:
(1) ALL SUBSCRIPTIONS FOR 42GEARS’ HOSTED SOFTWARE AS A SERVICE (SAAS) SOLUTIONS
(2) ANY OTHER RELATED SERVICES THAT 42GEARS MAY PROVIDE TO YOU IN CONNECTION WITH SUCH SAAS SOLUTION.
PLEASE READ THE AGREEMENT CAREFULLY BEFORE CONTINUING YOUR SUBSCRIPTION REGISTRATION. BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT AS SET FORTH IN ANY ONLINE OR PRINTED ORDER FORM REFERENCING THIS AGREEMENT, YOU AND ANY COMPANY YOU REPRESENT AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, YOU ARE REPRESENTING TO US THAT YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY TO THIS AGREEMENT, AND THE TERM “YOU” SHALL REFER TO YOUR COMPANY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST CHOOSE THE “CANCEL” BUTTON AND YOU SHALL NOT BE PERMITTED TO USE THE SOFTWARE SERVICE.
“Authorized Users” means you, your employees or third party individuals that are accessing the Software on your behalf. Third-Party users may Use the Software/(s) subject to Confidentiality obligations in this Agreement.
“Documentation” means the user guides or any other technical documentation published on the website……(link to be added)………. about the applicable Product that is provided by 42Gears to Customer together with access to the Product.
“ Term” means the term during which the Customer is granted the access rights to use the product, the term shall commence when 42Gears delivers to Customer the relevant user credentials to access and use the Product.
“Order” means any ordering document between Customer and 42Gears(if purchasing directly) or between Customer and reseller authorized by 42Gears(if purchasing indirectly) that identifies the products and/or services.
“Description of product” AstroContacts is an Enterprise Contact Management tool that allows seamless sharing of contacts among mobile team members. A user can quickly lookup a contact then call, email or text them with just a tap.
“Software” AstroContacts is a Centralized Contact Management software tool which uses a cloud-based contact database saving the hassles of manually setting up or updating individual address books in an organization. With no back-end to manage, it helps employees to navigate through the contact database within an organization on their mobile devices.
“Updates” means any correction, update, upgrade, patch, or other modification or addition made by 42Gears to the specific Software.
The term for trial of the Product is thirty (30) days, which 42Gears may extend upon its discretion by giving a written consent to the Customer; (ii) the trial period shall commence on the date when 42Gears delivers to Customer the relevant user credentials to access and use the Product. (iii) Trial version of the Product is provided “AS IS” without warranty of any kind, and 42Gears disclaims all warranties, indemnities, and all other liabilities for the product under such term; (iv) Customer will not be not entitled to any support and maintenance services or any Updates for the Trial version of the Product; and (v) either party may terminate the license for the Product under Trial version upon five (5) days’ written notice to the other party.
Grant of access and Right of Use:
Subject to the terms and conditions of this Agreement, during the Term, 42Gears hereby grants to Customer (i) a non-exclusive, non-transferable and non-sublicensable license for Customer to access and use the Product and to copy, and install the Software. 42Gears grants the rights solely for Customer’s internal use for Customer’s business operations and in accordance with the Documentation mentioned above, and (ii) 42Gears grants the Customer to maintain a reasonable number of copies of the Software on its systems solely for backup and recovery purposes. Customer may provide access to the Software to its employees, contractors or third parties, and other individual to access and use the Software on its behalf and for its business operations to comply with the terms of the Agreement. Customer will be responsible for any and all actions that violate the terms of this Agreement.
Restrictions on Use and Customer Obligations:
Customer or any of its users shall not (i) access the Software to process, or permit to be processed, the data of any other party; (ii) access the Software for service bureau or commercial time-sharing use; (iii) disassemble, decompile, or reverse engineer the Software or Confidential Information (as defined in this Agreement) or permit others to do so (iv) copy or replicate the Documentation provided in relation to the Software in any form.
Customer hereby agrees to be responsible for providing and maintaining the required terminal equipment, the data line and shall ensure that Customer’s configuration and technical condition comply with the current requirements as stated in 42Gears website www.42gears.com (check technical facts for each product).
Fees: The monthly subscription fees due for use of the Software on one device is specified at 42Gears website (in case of direct purchase from 42Gears), fees quoted by 42Gears authorized reseller (if Software is purchased from 42Gears authorized reseller). 42Gears may offer discounts, at its discretion in case Customer makes a bulk purchase of the Software for use in multiple devices. Fees will be calculated based on the number of devices on which the Software will be downloaded and the period for which it will be used. The fees are exclusive of applicable taxes and any such taxes shall be assumed and paid by the Customer except those taxes based on the net income of 42Gears. This provision does not apply to any taxes for which Customer is exempt, provided the Customer has furnished 42Gears with a valid tax exemption certificate.
Payment Due Date: The applicable Fees is due for payment before accessing the commercial version of the Software. In case the Customer has payment credit period approved by 42Gears in writing, Customer has to pay the Fees due within the credit period.
“ Confidential Information” shall mean all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) pursuant to this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure, including without limitation 42Gears’ Software and Documentation that is proprietary and confidential to 42Gears or is 42Gears’ trade secret. Receiving Party agrees: (i) not to use or disclose the Disclosing Party’s Confidential Information in any way except as expressly permitted hereunder, (ii) to safeguard and protect the Disclosing Party’s Confidential Information with the same degree of care that it takes to protect its own confidential information, but in no event less than reasonable care. Confidential Information excludes information that: (i) is or becomes generally known to the public; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation to the Disclosing Party; (iii) is received from a third party without any obligation of confidentiality to a third party or breach of any obligation of confidentiality to the Disclosing Party; or (iv) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information. To the extent necessary under this Agreement, the Receiving Party may disclose the Confidential Information of the Disclosing Party to the Receiving Party’s employees who are bound by written obligations of confidentiality and non-use and non-disclosure restrictions at least as protective as those set forth herein. In the event of a court order or government regulation compelling disclosure of any Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt written notice thereof, and shall reasonably cooperate with the Disclosing Party to seek protective treatment and minimize the disclosure. Obligations set forth in this section shall remain in effect during the term of this Agreement and three (3) year thereafter. The Receiving Party shall promptly return to the Disclosing Party or destroy (and certify such destruction by an authorized representative of the Receiving Party) all Confidential Information of the Disclosing Party in its possession or control.
Ownership and Reservation of Rights:
42Gears grants no ownership rights to Customer 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; (ii) 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). Customer hereby irrevocably assigns and agrees to assign all of Customer’s right, title, and interest in and to any Feedback to 42Gears. To the extent such Feedback cannot be assigned, Customer hereby grants and agrees to grant 42Gears at no charge a perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit the Feedback without restriction. By signing this Agreement Customer irrevocably acknowledges that, subject to the access and rights granted herein, Customer has no ownership interest in the Software provided by 42Gears. 42Gears own all right, title, and interest in such Software/(s), subject to any limitations associated with intellectual property rights of third parties. 42Gears reserves all rights not specifically granted herein.
42Gears hereby warrants that to its knowledge it has all the necessary rights and title to license the Software to the Customer.
Customer hereby warrants that it has the necessary rights to share and upload all the Customer data shared with 42Gears or uploaded into the Software. Customer data means any materials or data provided by the Customer to 42Gears pursuant to this Agreement, including information or data that is uploaded into the Software. 42Gears may store such data solely for storage, retrieval or backup purposes.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS SECTION , THE PRODUCT, HARDWARE, AND SERVICES ARE PROVIDED “AS IS,” AND 42GEARS PROVIDES NO OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND 42GEARS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
Third Party Software:
The Software may incorporate or access Third Party Software and services. The Third Party Software notices and terms and conditions are available in the following webpage: https://www.42gears.com/third-party-libraries-terms Licensee agrees to and must ensure all users comply with all applicable terms and conditions for the Third Party Software at all times. To the extent permitted by law, all Third Party Software provided with or contained in the Software is provided “AS IS” without warranty of any kind. Licensor will have no liability or responsibility for the operation or performance of the Third Party Software and will not be liable for any damages, costs, or expenses, direct or indirect, arising out of the performance or failure to perform of the Third Party Software.
42Gears shall at its expense defend any third party cause of action brought against Customer based on a claim that the Software, as delivered by 42Gears to Customer, infringes a copyright, or trade secret of such third party. 42Gears will pay all costs and damages finally awarded by a court of final jurisdiction against the Customer pursuant to any such claim or paid in settlement of any such claim. 42Gears will not be liable for any claim of infringement if (i) the Software is modified by parties other than 42Gears; (ii) if the Customer uses the Software in conjunction with data where use with such data gave rise to the infringement claim; or (iii) Customer uses the Software with such other software or hardware that use of the software or hardware gave rise to the infringement claim.
42Gears will not be liable unless:
Customer notifies 42Gears in writing immediately after it becomes aware of a claim or the possibility thereof; and 42Gears has sole control of the settlement, compromise, negotiation, and defense of any such action; and the Customer cooperates, in good faith, in the defense of any such legal action.
Should the Software become, or in 42Gears opinion is likely to become, the subject of a claim of infringement, 42Gears may, at its option, (i) obtain the right for the Customer to continue using the Software; (ii) replace or modify the Software so it is no longer infringing; or (iii) if neither of the foregoing options is commercially reasonable, terminate the license for the Software. Upon such termination of the license and upon return of the Software, 42Gears will refund to Customer, as Customer’s sole remedy for such termination, all the fees paid by the Customer for the terminated license, less an amount equal to the fees for each month or any portion thereof which has elapsed from the Term of such terminated license.
THIS SECTION STATES THE ENTIRE LIABILITY OF 42GEARS WITH RESPECT TO ANY CLAIM OF INFRINGEMENT REGARDING THE SOFTWARE.
Limitation of Liability:
IN NO EVENT WILL 42GEARS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, STATUTORY OR COMMON LAW ATTORNEY FEES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE WHETHER SUCH ACTION IS BASED IN CONTRACT OR IN TORT INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, 42GEAR’S AGGREGATE LIABILITY PURSUANT TO THIS AGREEMENT, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION OR OTHERWISE SHALL, IN RESPECT OF A SINGLE OCCURRENCE OR A SERIES OF OCCURRENCES (ALL CLAIMS), IN NO CIRCUMSTANCES EXCEED THE FEES PAID BY CUSTOMER TO 42GEARS, FOR THE SOFTWARE, OVER THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE RECEIPT BY 42GEARS OF THE RELEVANT NOTIFICATION OF CLAIM AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
Term and Termination:
The term of this Agreement shall be one (1) year from the date of acceptance of this Agreement by the Customer.
Termination by 42Gears:
This Agreement and any subscription to the Software hereunder may be terminated by 42Gears (i) if Customer fails to make any payments due hereunder within fifteen (15) days after 42Gears delivers notice of default to the Customer; (ii) by giving prior written notice to Customer on account of failure to perform any material obligation required of it hereunder, and such failure is not cured within thirty (30) days from Customer’s receipt of notice by 42Gears to cure such non-performance of material obligation; (iii) if the Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated as a bankrupt concern.
Effects of Termination:
Customer’s rights to the Software or product and all the Confidential Information of 42Gears will terminate upon termination of this Agreement. Customer shall immediately stop using the Software and 42Gears’ Confidential Information. Any use of the affected Software and 42Gears Confidential Information post termination by the Customer will constitute an infringement and/or misappropriation of 42Gears’s proprietary rights in the Software. Upon termination of this Agreement by the Customer, 42Gears shall have no further obligation or liability hereunder and all fees due under this Agreement shall become due and payable to 42Gears immediately upon such termination.
Termination of this Agreement or any license created hereunder shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by the Customer under this Agreement.
42Gears and Customer are independent and no partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement.
As the performance of the Agreement and delivery of the Services implies the delivery of the personal data, 42Gears shall comply with the applicable data protection laws and regulations. For the avoidance of doubt we will:
- 4Gears shall notify the Customer of any data breaches involving the data we process on behalf of our Customer as soon as reasonably practical;
- Provide support to Customer at their request to assess the impact of our services on their privacy (for example, through assisting Customer with a Data Protection Impact Assessment);
- Provide support to Customer in responding to requests from data subjects to exercise their rights under the EU General Data Protection Regulation (GDPR).
42Gears has documented its processing and publishes this in the privacy notice. This can be found on the 42Gears website, or provided at your request.
42Gears will adopt appropriate technical and organizational measures against unauthorized or unlawful processing, and to evaluate at regular intervals the adequacy of such security measures also amending these measures where necessary.
Inspection and Audit:
42Gears shall at the request and cost of the Customer, submit its data processing activities for audit or control of the processing activities.
42Gears refrain from engaging another sub-processor without the prior written consent of the Customer.
42Gears shall not be liable to Customer for any delay or failure of 42Gears to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of 42Gears. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delay by the Customer in providing required resources or support or performing any other requirements hereunder the Agreement.
Any claim or dispute arising out of or relating to, including without limitation, the Agreement shall be settled by binding arbitration, by a sole arbitrator, in accordance with the applicable/governing Indian Arbitration Act. Any such claim or dispute shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any other claim or dispute of any other party. The arbitration shall be conducted in Bangalore, and judgment on the arbitration award may be entered into the Karnataka High Court having jurisdiction thereof. Neither 42Gears nor the Customer may seek any interim or preliminary relief, from any court without serving the other party with a notice of intention to seek such relief (including details of relief sought and of the case to be made out in court) of not less than three (3) working days at its registered or known address. 42Gears and the Customer agree that any dispute regarding the validity or scope of this clause shall be commenced in the Karnataka High Court and shall be governed by the laws of India. The fees of the arbitrator shall be borne by the parties equally.
Governing Laws and Jurisdiction:
This Agreement and any relationship between 42Gears and the Customer, unless otherwise stated in a separate agreement between 42Gears and Customer, shall be governed by and construed in accordance with the laws of India and the High Court of Karnataka shall have exclusive jurisdiction without regard to conflict of law provisions.
If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision or part thereof which is necessary to render the provision valid, legal and enforceable, shall be severed from the Agreement and the other provisions and the remaining part of that provision shall remain in full force and effect.
This Agreement and the rights granted hereunder shall not be assigned or transferred, by operation of law or otherwise, by Licensee without the prior written consent of Licensor. Licensor may assign this Agreement at any time.
This Agreement contains the entire agreement and understanding between 42Gears and Customer with respect to the subject matter hereof and supersedes and replaces all prior agreements or understanding whether written or oral, with respect to the same subject matter that are still in force between 42Gears and Customer.
Last Updated: May 18, 2018