Mobile Managed Services Application International End User License Agreement
IMPORTANT LEGAL NOTICE TO ALL USERS: CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT BEFORE YOU START USING THE SOFTWARE.
BY CLICKING THE ACCEPT BUTTON IN THE LICENSE AGREEMENT WINDOW YOU CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. SUCH ACTION IS A SYMBOL OF YOUR SIGNATURE AND YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT AND AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CANCEL THE INSTALLATION OF THE SOFTWARE AND DO NOT INSTALL THE SOFTWARE.
AFTER CLICKING THE ACCEPT BUTTON IN THE LICENSE AGREEMENT WINDOW YOU HAVE THE RIGHT TO USE THE SOFTWARE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1.1. Software means software including any Updates and related materials.
1.2. Rightholder (owner of all rights, whether exclusive or otherwise to the Software) means Mobilise IT Pty Ltd, a company incorporated according to the laws of the State of Victoria, Australia.
1.3. Computer(s) means hardware(s), including personal computers, laptops, workstations, personal digital assistants, ‘smart phones’, hand-held devices, or other electronic devices for which the Software was designed where the Software will be installed and/or used.
1.4. Customer Web Portal means a service provided at the Rightsholder’s web-portal and used for management of the installed Software, as well as for the storage of information obtained from the Software, it is described in Clause 3.
1.5. End User (You/Your) means individual(s) installing or using the Software on his or her own behalf or who is legally using a copy of the Software; or, if the Software is being downloaded or installed on behalf of an organization, such as an employer, “You” further means the organization for which the Software is downloaded or installed and it is represented hereby that such organization has authorized the person accepting this agreement to do so on its behalf. For purposes hereof the term “organization,” without limitation, includes any partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, labor organization, unincorporated organization, or governmental authority.
1.6. Partner(s) means organizations or individual(s), who distributes the Software based on an agreement and license with the Rightholder.
1.7. Update(s) means all upgrades, revisions, patches, enhancements, fixes, modifications, copies, additions or maintenance packs etc.
1.8. User Manual means user manual, administrator guide, reference book and related explanatory or other materials.
Grant of License
2.1. The Rightsholder hereby grants You a non-exclusive license to store, load, install, execute, and display (to “use”) the Software on a specified number of Computers in order to begin utilising the mobile managed help desk services, according to the technical requirements described in the Electronic User Manual and according to the terms and conditions of this Agreement (the “License”) and you accept this License.
2.2. To use the software you need to register in the Customer Web Portal.
2.3. You have the right to use the Software to begin utilising the mobile managed help desk services.
2.4. You can transfer the non-exclusive license to use the Software to other individuals within the scope of the license granted from the Rightsholder to You provided that You pass the Computer where the Software is installed to the recipient who agrees to be bound by all the terms and conditions of this Agreement and substitute You in full in the license granted from the Rightsholder. In case You fully transfer the rights granted from the Rightsholder to use the Software You must destroy all copies of the Software included. If You are a recipient of a transferred license You must agree to abide by all the terms and conditions of this Agreement. If You do not agree to be bound by all the terms and conditions of this Agreement, You may not use the Software. You also agree as the recipient of a transferred license that You do not have any additional or better rights than what the original End User who acquired the Software from the Rightsholder did.
2.5. From the time of the Software installation You have the right to receive the following services for the period in which your Mobilise IT Managed Service subscription is current:
- Updates of the Software via the Internet when and as the Rightsholder publishes them on its website or through other online services. Any Updates that you may receive become part of the Software and the terms and conditions of this Agreement apply to them;
- Customer Web Portal Updates.
Communication with the web-portal and provision for the information for the Customer Web Portal
3.1. You are responsible for saving the confidential information related to access to Your Customer Web Portal.
3.2. You are responsible for any actions performed during using Your Customer Web Portal. You acknowledge and agree that the Rightsholder has no liability for unauthorized use of Your Customer Web Portal.
3.3. The data stored at Customer Web Portal on the web-portal are protected by the Rightsholder in accordance with statutory requirements.
3.4. The usage of the Customer Web Portal is voluntary.
3.5. You acknowledge and agree that the Rightsholder is not responsible for any delays and failures caused by the quality of the services provided by Your Internet or mobile provider.
4.1. Technical support for the use of the Software is available via the mobile managed help desk services.
5.1. To improve the information protection level, You agree to automatically transfer the information used for URL determination, the information about the downloaded applications to the Computer, data about results of the heuristic analyzer work as well as any other information required to effectively deliver the mobile managed help desk service. Obtained information does not contain any User personal or confidential information. Obtained information is protected by the Rightsholder in accordance with statutory requirements.
5.2. You agree to automatically send information on the application files at the time of installation in order to check security.
5.3. The Software does not process any personally identifiable data and does not combine the processed data with any personal information.
5.4. You further acknowledge and agree that any information gathered by Rightsholder can be used to track and publish reports on security, risk and trends in the Rightsholder’s sole and exclusive discretion.
6.1. You shall not emulate, clone, rent, lend, lease, sell, modify, decompile, or reverse engineer the Software or disassemble or create derivative works based on the Software or any portion thereof with the sole exception of a non-waivable right granted to You by applicable legislation, and you shall not otherwise reduce any part of the Software to human readable form or transfer the licensed Software, or any subset of the licensed Software, nor permit any third party to do so, except to the extent the foregoing restriction is expressly prohibited by applicable law. Neither Software’s binary code nor source may be used or reverse engineered to re-create the program algorithm, which is proprietary. All rights not expressly granted herein are reserved by Rightsholder and/or its suppliers, as applicable. Any such unauthorized use of the Software shall result in immediate and automatic termination of this Agreement and the License granted hereunder and may result in criminal and/or civil prosecution against You.
6.2. You shall not transfer the rights to use the Software to any third party except as set forth in Clause 2.4.
6.3. You shall not rent, lease or lend the Software to any third party.
6.4. You shall not use the Software in the creation of data or software used for detection, blocking or treating threats described in the User Manual.
6.5. You shall not use the Software with the purpose of executing illegal actions, including tracking and obtaining confidential information for use against a third party.
Limited Warranty and Disclaimer
7.1. The Rightsholder guarantees that the Software will substantially perform according to the specifications and descriptions set forth in the User Manual provided however that such limited warranty shall not apply to the following: (w) Your Computer’s deficiencies and related infringement for which Rightsholder’s expressly disclaims any warranty responsibility; (x) malfunctions, defects, or failures resulting from misuse; abuse; accident; neglect; improper installation, operation or maintenance; theft; vandalism; acts of God; acts of terrorism; power failures or surges; casualty; alteration, non-permitted modification, or repairs by any party other than Rightsholder; or any other third parties’ or Your actions or causes beyond Rightholder’s reasonable control; (y) any defect not made known by You to Rightsholder as soon as practical after the defect first appears; and (z) incompatibility caused by hardware and/or software components installed on Your Computer.
7.2. You acknowledge, accept and agree that no software is error free and You are advised to back-up the Computer, with frequency and reliability suitable for You.
7.3. You acknowledge, accept and agree that Rightsholder is not responsible or liable for data deletion authorized by You. The mentioned data may include any personal or confidential information.
7.4. The Rightsholder does not provide any guarantee that the Software will work correctly in case of violations of the terms described in the User Manual or in this Agreement.
7.5. The Rightsholder does not guarantee that the Software will work correctly if You do not regularly download updates and/or Updates specified in Clause 2.5 of this Agreement.
7.6. You acknowledge that the Software will be provisioned with Mobilise IT MMS standard settings applied by default and that it is Your sole responsibility to configure the Software to satisfy Your own requirements.
7.7. THE SOFTWARE IS PROVIDED “AS IS” AND THE RIGHTSHOLDER MAKES NO REPRESENTATION AND GIVES NO WARRANTY AS TO ITS USE OR PERFORMANCE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM THE EXTENT TO WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW THE RIGHTSHOLDER AND ITS PARTNERS MAKE NO WARRANTY, CONDITION, REPRESENTATION, OR TERM (EXPRESSED OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, INTEGRATION, OR APPLICABILITY FOR A PARTICULAR PURPOSE. YOU ASSUME ALL FAULTS, AND THE ENTIRE RISK AS TO PERFORMANCE AND RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE. WITHOUT LIMITING THE FOREGOING PROVISIONS, THE RIGHTSHOLDER MAKES NO REPRESENTATION AND GIVES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET ANY OR ALL YOUR REQUIREMENTS WHETHER OR NOT DISCLOSED TO THE RIGHTHOLDER.
Exclusion and Limitation of Liability
8.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE RIGHTSHOLDER OR ITS PARTNERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR LOSS OF PRIVACY, FOR CORRUPTION, DAMAGE AND LOSS OF DATA OR PROGRAMS, FOR FAILURE TO MEET ANY DUTY INCLUDING ANY STATUTORY DUTY, DUTY OF GOOD FAITH OR DUTY OF REASONABLE CARE, FOR NEGLIGENCE, FOR ECONOMIC LOSS, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, OR ARISING OUT OF ANY BREACH OF CONTRACT OR ANY TORT (INCLUDING NEGLIGENCE, MISREPRESENTATION, ANY STRICT LIABILITY OBLIGATION OR DUTY), OR ANY BREACH OF STATUTORY DUTY, OR ANY BREACH OF WARRANTY OF THE RIGHTSHOLDER OR ANY OF ITS PARTNERS, EVEN IF THE RIGHTSHOLDER OR ANY PARTNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU AGREE THAT IN THE EVENT THE RIGHTSHOLDER AND/OR ITS PARTNERS ARE FOUND LIABLE, THE LIABILITY OF THE RIGHTSHOLDER AND/OR ITS PARTNERS SHALL BE LIMITED BY THE COSTS OF THE SOFTWARE. IN NO CASE SHALL THE LIABILITY OF THE RIGHTSHOLDER AND/OR ITS PARTNERS EXCEED THE FEES PAID FOR THE SOFTWARE TO THE RIGHTSHOLDER OR THE PARTNER (AS MAY BE APPLICABLE).
NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS ANY CLAIM FOR DEATH AND PERSONAL INJURY. FURTHER IN THE EVENT ANY DISCLAIMER, EXCLUSION OR LIMITATION IN THIS AGREEMENT CANNOT BE EXCLUDED OR LIMITED ACCORDING TO APPLICABLE LAW THEN ONLY SUCH DISCLAIMER, EXCLUSION OR LIMITATION SHALL NOT APPLY TO YOU AND YOU CONTINUE TO BE BOUND BY ALL THE REMAINING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS.
GNU and Other Third Party Licenses
9.1. The Software may include some software programs that are licensed (or sublicensed) to the user under the GNU General Public License (GPL) or other similar free software licenses which, among other rights, permit the user to copy, modify and redistribute certain programs, or portions thereof, and have access to the source code (“Open Source Software”). If such licenses require that for any software, which is distributed to someone in an executable binary format, that the source code also be made available to those users, then the source code should be made available by sending the request to email@example.com or the source code is supplied with the Software. If any Open Source Software licenses require that the Rightsholder provide rights to use, copy or modify an Open Source Software program that are broader than the rights granted in this Agreement, then such rights shall take precedence over the rights and restrictions herein.
Intellectual Property Ownership
10.1. You agree that the Software and the authorship, systems, ideas, methods of operation, documentation and other information contained in the Software, are proprietary intellectual property and/or the valuable trade secrets of the Rightsholder or its partners and that the Rightsholder and its partners, as applicable, are protected by civil and criminal law, and by the law of copyright, trade secret, trademark and patent of the Australian, European Union and the United States, as well as other countries and international treaties. This Agreement does not grant to You any rights to the intellectual property including any the Trademarks or Service Marks of the Rightsholder and/or its partners (“Trademarks”). You may use the Trademarks only insofar as to identify printed output produced by the Software in accordance with accepted trademark practice, including identification of the Trademark owner’s name. Such use of any Trademark does not give you any rights of ownership in that Trademark. The Rightsholder and/or its partners own and retain all right, title, and interest in and to the Software, including without limitation any error corrections, enhancements, Updates or other modifications to the Software, whether made by the Rightsholder or any third party, and all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights therein. Your possession, installation or use of the Software does not transfer to you any title to the intellectual property in the Software, and you will not acquire any rights to the Software except as expressly set forth in this Agreement. All copies of the Software made hereunder must contain the same proprietary notices that appear on and in the Software. Except as stated herein, this Agreement does not grant you any intellectual property rights in the Software and you acknowledge that the License, as further defined herein, granted under this Agreement only provides you with a right of limited use under the terms and conditions of this Agreement. Rightholder reserves all rights not expressly granted to you in this Agreement.
10.2. You acknowledge that the source code, activation code and/or license key file for the Software are proprietary to the Rightsholder and constitutes trade secrets of the Rightsholder. You agree not to modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software in any way.
10.3. You agree not to modify or alter the Software in any way. You may not remove or alter any copyright notices or other proprietary notices on any copies of the Software.
11.1. Except as provided in Clauses 11.2 and 11.3 below, this Agreement shall be governed by and construed in accordance the laws specified below for the country or territory in which you obtained the Software, without reference to or application of conflicts of laws principles:
a. Australia. If you obtained the Software in Australia, the laws of the State of Victoria.
b. Hong Kong Special Administration Region (SAR) and Macau SAR. If you obtained the Software in Hong Kong SAR or Macau SAR, the laws of Hong Kong SAR.
c. Singapore. If you obtained the Software in Singapore, the laws of Singapore.
- Japan. If you obtained the Software in Japan, the laws of Japan.
e. United States, Puerto Rico, American Samoa, Guam, and U.S. Virginia Islands. If you obtained the Software in the United States, Puerto Rico, American Samoa, Guam or the U.S. Virgin Islands, the laws of the State of Massachusetts, USA, provided, however, that the laws of the U.S. state where you live will govern claims under state consumer protection, unfair competition, or similar laws. To the fullest extent permitted by law, the Rightsholder and you expressly agree hereby to waive any right to a trial by jury.
f. Canada. If you obtained the Software in Canada, the laws of the Province of Ontario.
g. Mexico. If you obtained the Software in Mexico, the federal laws of the Republic of Mexico.
h. European Union (EU). If you obtained the Software in a member country of the EU, the laws of England.
i. Any Other Country or Territory. If you obtained the Software in any other country, the substantive laws of the country where the purchase took place would be in effect.
11.2. Notwithstanding the foregoing, if the mandatory laws or public policy of any country or territory in which this Agreement is enforced or construed prohibit the application of the law specified herein, then the laws of such country or territory shall instead apply to the extent required by such mandatory laws or public policy. Similarly, if you are an individual consumer, the provisions of Clause 11.1 shall not affect any mandatory right you may have to take action in your country of residence under the laws of that country.
11.3. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
Period for Bringing Actions
12.1. No action, regardless of form, arising out of the transactions under this Agreement, may be brought by either party hereto more than one (1) year after the cause of action has occurred, or was discovered to have occurred, except that an action for infringement of intellectual property rights may be brought within the maximum applicable statutory period.
Entire Agreement; Severability; No Waiver
13.1. This Agreement is the entire agreement between you and Rightsholder and supersedes any other prior agreements, proposals, communications or advertising, oral or written, with respect to the Software or to subject matter of this Agreement. You acknowledge that you have read this Agreement, understand it and agree to be bound by its terms. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, void, or unenforceable for any reason, in whole or in part, such provision will be more narrowly construed so that it becomes legal and enforceable, and the entire Agreement will not fail on account thereof and the balance of the Agreement will continue in full force and effect to the maximum extent permitted by law or equity while preserving, to the fullest extent possible, its original intent. No waiver of any provision or condition herein shall be valid unless in writing and signed by you and an authorized representative of Rightsholder, provided that no waiver of any breach of any provisions of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach. Rightsholder’s failure to insist upon or enforce strict performance of any provision of this Agreement or any right shall not be construed as a waiver of any such provision or right.
Rightholder Contact Information
Should you have any questions concerning this Agreement, or if you desire to contact the Rightsholder for any reason, please contact our help desk service at:
Mobilise IT Pty Ltd
(C) 2012 Mobilise IT Pty Ltd. All Rights Reserved. The Software and any accompanying documentation are copyrighted and protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.