MOBILE GUARDIAN END USER AGREEMENT
This End User Agreement (“Agreement”) is between you and Mobile Guardian Limited (‘’Mobile Guardian’’ / ‘’we’’). If you are entering into this Agreement on behalf of a company or other entity, then “End User’’ or “you” means that company or entity, and you warrant that you are authorised to do so.
By registering either a school or parent account, or by using or accessing any of Mobile Guardian’s digital applications and/or services (‘’Products’’), you agree to be bound by the terms of this Agreement.
If you do not agree to these terms, you must not use any of our Products.
Account registration and Authorised Users
- To use our Products, you will need to register an account with us at mobileguardian.com. You warrant that all information given when registering an account with us is accurate, current and complete. You will be responsible for any loss, claims, damages or delays caused by any incorrect account information being given to us.
- When registering an account, you will be required to choose a secure username and password (user details) for you and each of your Authorised Users. You are responsible for keeping your user details secure at all times and to prevent any unauthorised use thereof. If you become aware of any unauthorised activity on your account, you must notify us immediately. We also reserve the right to suspend or disable access to your account if we reasonably suspect that any unauthorised activity is taking place on your account, without incurring any liability to you, your Authorised Users or any other person.
- You are responsible for compliance with this Agreement by all Authorized Users and all use of our Products by you or your Authorized Users must comply with our Acceptable Use Policy below.
- This Agreement also applies whether you purchase our Products directly from one of our authorised resellers, regardless of whether you have entered into any other agreement with such reseller with or without our authority or knowledge.
Grant of Licence
- Subject to the terms of this Agreement, we grant to you and/or your designated Authorised Users, a non-exclusive, non-transferable, non-sublicensable right and license to access and use the Products ordered by you.
- You and/or your Authorised Users are permitted to use the Products solely for internal use and for the purpose for which the Products are offered by us.
- The Products may not be used for any other purposes unless we have been notified beforehand in writing and we have given you our written approval for such alternative use; and provided that the total number of Authorised Users does not exceed the number of permitted Authorised Users as specified in the Order placed by you and accepted by us.
- You certify to us and agree that:
- You are of the legal age of majority in the jurisdiction in which you reside (at least 18 years of age in many countries) and have the right and authority to enter into this Agreement on your own behalf, or if you are entering into this Agreement on behalf of your company, organization, educational institution, or agency, instrumentality, or department of government, that you have the right and authority to legally bind such entity or organisation to the terms and obligations of this Agreement;
- All information provided by yourself to us or your end-users in connection with this Agreement, will be current, true, accurate, supportable and complete and, with regard to information provided, you will promptly notify us of any changes to such information.
- You will comply with the terms of and fulfil your obligations under this Agreement and you agree to monitor and be responsible for your Authorszed Users’ use of the Products, and their compliance with the terms of this Agreement;
- You will not act in any manner which conflicts or interferes with any existing commitment or obligation you may have, and no agreement previously entered into by yourself will interfere with your performance of his/her obligations under this Agreement.
- The Products, and any user data entered in it, may not be used for the purpose of harassing, abusing, spamming, stalking, threatening or otherwise violating the legal rights (such as the rights of privacy and publicity) of others.
- You will be solely responsible for all costs, expenses, losses and liabilities incurred, and activities undertaken by yourself and your Authorised Users in connection with the Products, including, but not limited to, any data encoding, download, or any other services you use;
- You certify to us and agree that:
- Except as otherwise expressly permitted in this Agreement, you may not:
- rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, perform, publish, display or otherwise provide access to the Products to an unauthorised person, or use the Products for the benefit of any unauthorised person;
- incorporate the Products into any competing product or service offering that you promote and/or supply to other persons;
- interfere with any security mechanism in the Products, or otherwise circumvent or attempt to circumvent any mechanisms in the Products which are intended to limit unauthorised access to and use of the Products;
- reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs for the Products, except as permitted by law;
- remove or obscure any proprietary or other notices contained in the Products;
- use the Products in conflict with the requirements or provisions of any documentation, guidelines, or other reasonable instructions issued by us with regard to the use of the Products (‘’User Documentation’’); or
- otherwise use the Products in any way which infringes, or attempts to infringe, the rights of any other person; or use the Products for any illegal purpose or in violation of any applicable laws.
- Except as otherwise expressly permitted in this Agreement, you may not:
- Once you have registered an account with us, we will make the Products available for use to you.
- For the avoidance of doubt, you are responsible for ensuring that any mobile devices, hardware, or other software used by you is fully compatible with the Products you order from us. If you require any support or assistance in integrating our Products with any of your existing devices, hardware and software, you may place an order for such Additional Services with us or, where applicable, our designated reseller.
- The User Documentation will accurately and completely describe the functionality and features of the Products.
- The User Documentation shall be understandable by a typical end user of the Products and shall provide sufficient instruction to allow an end user to become self-reliant with respect to access and use of the Products.
Changes in Functionality
- During the term of this agreement, we may change certain features and functionality of the Products.
- We shall use our best efforts to notify you of any expected changes, but we will always be entitled to make any changes we deem fit and in our sole discretion.
- If you object to any changes made to the Products, your sole remedy will be to terminate this agreement and cease any further use of the Products. If you do so, you will not be entitled to claim any compensation from or repayment of any amounts already paid to us.
- Similarly, if we improve or increase the features or functionality of the Products through changes that are made, you will not be charged any additional fees or other amounts not stipulated in this agreement.
- Technical support via telephone or email is available through the support section of mobileguardian.com.
- Information regarding availability, nature and conditions of technical support may be found at mobileguardian.com.
- We may offer certain Products to you at no charge, including free accounts, trial use, and access to Beta Versions of the Products or parts thereof (“No-Charge Products”).
- Your use of our No-Charge Products is subject to the terms of this Agreement and any additional terms that we specify.
- Your use of our No-Charge Products is only for the limited period specified and we may terminate your right to use our No-Charge Products at any time and for any reason, without incurring any liability to you.
- You acknowledge that any pre-release and beta products we make available (“Beta Versions”) are still under development, may be inoperable or incomplete, and are likely to contain more errors and bugs than normally expected. We disclaim any and all liability arising from your use of any Beta Versions and your use is entirely at your own risk.
Third party software and services
- You acknowledge that where third party software or services are used in conjunction with the Products, we do not have any control over that third-party software and services, and that we shall have no liability or obligation whatsoever in relation to the use of any third party software or services when you or your Authorised Users access and use the Products.
Intellectual Property Rights
- Except for any third-party software which may be included as a part of or used in conjunction with the Products, we own or hold, and shall continue to own and hold, all rights, title, ownership and interest in and to the Products and the User Documentation, including all intellectual property rights embodied therein.
- Except for the rights of access and use granted to you in terms of this Agreement, no other licenses or rights are granted, by implication, estoppel or otherwise, to you in respect of the Products and any intellectual property rights embodied therein.
- We warrant that we own or hold the intellectual property rights in and to the Products and User Documentation, and that you and/or your Authorised Users’ use of the Products pursuant to this agreement will not infringe the intellectual property rights of any other person. We hereby indemnify, agree to defend, and hold you and/or your Authorised Users’ harmless against all claims, legal proceedings, losses, liabilities, penalties, fines, costs and expenses (including reasonable legal costs) arising from the infringement or alleged infringement of any person’s intellectual property rights as a result of your use of the Products.
- You undertake to immediately notify us in writing of any claims instituted against you in terms of clause 11.3. We will, at our cost, take all necessary steps to defend or have ourselves substituted as the defendant/respondent in any legal proceedings, provided that you give all reasonable assistance wherever necessary for the proper defence of such claims, including providing us with any relevant information, documentation, or witness statements and contact details, as may be reasonably requested by us in this regard.
- If we choose not to defend or oppose any claim referred to in terms of clause 11.3, or we are unsuccessful in our defence of such claims, then we will at our own cost:
- Immediately replace the infringing item with a compatible, functionally equivalent and non-infringing item; or
- Make the necessary modifications to the Products to avoid the infringement; or
- Obtain a license for you to continue using the item.
- We will have no liability for any claim of intellectual property infringement:
- caused by you or your Authorised Users’ use of the Products or any part thereof in a manner not authorised by us; or
- resulting from any unauthorised modification of the Products or any part thereof; or
- where the claim for infringement arises in respect of any modification specifically made on your request.
- We undertake to only provide, collect, use, store or process any of your data (including personal information about any identifiable individual) in compliance with all applicable laws, and only where it is necessary for the purposes of this Agreement or otherwise on your written instructions.
- We, or our third-party service providers, implement adequate security safeguards to help protect your data.However, we do not provide any warranties, guarantees or assurances in relation to the security of your data. In particular, you acknowledge that, when accessing and using our Products, your data will be transmitted over networks and stored using infrastructure that are not controlled by us, and we will not and cannot be held responsible for any loss of or unauthorised use or modification of your data while it is transmitted or stored on such networks or infrastructure.
- We may from time to time impart to each other certain confidential information and we may otherwise obtain confidential information concerning each other’s business and affairs, including information marked or identified by the disclosing party as confidential or information which may be reasonably regarded as the confidential information of the disclosing party.
- We each agree that we shall not disclose such confidential information (except to our respective employees, agents and professional advisers, and only then if they are bound by the same or no less stringent duties of confidentiality and non-disclosure as set out herein) whether directly or indirectly to any unauthorised person.
- This clause shall not prevent the disclosure or use by either party of any information which is required to be disclosed by applicable law or regulation or order of a court of competent jurisdiction or is or hereafter through no fault of that party becomes public knowledge.
- Disclaimer of warranties
- The products and user documentation are provided “as is,” and mobile guardian its affiliates, agents, directors, employees, suppliers and licensors make no warranties, whether express, implied, or statutory, regarding the products or the user documentation, including any warranties of merchantability, fitness for a particular purpose or title.
- In particular, but without limiting the generality of clause 14.1, we do not warrant that the functions contained in the products will meet your specific requirements, or that the operation of the products will be uninterrupted, error-free, or free from any malicious code.
Limitation of liability
- Mobile guardian its affiliates, agents, directors, employees, suppliers and licensors shall not be held or found liable for any consequential, indirect, exemplary, special, or incidental damages, including any lost data and lost profits, arising from or relating to your use of the products or otherwise in terms of this agreement, whether suffered by you or any authorised user or any other person.
- We shall not be held liable for failure or delay in performing any of its obligations under this agreement, if such failure or delay is caused by or results from an event of Force Majeure.
- We shall promptly notify you of the occurrence of an event of Force Majeure and the estimated extent and duration of its inability to perform our obligations.
- Upon the cessation of the event of Force Majeure, we shall promptly notify you of such cessation and resume performance of our obligations.
- If we are unable to perform our obligations for a consecutive period of longer than 60 (sixty) days as a result of any Force Majeure, either of us may terminate this Agreement without incurring any liability to the other.
- You fail to comply with any of your obligations or commit a breach of this Agreement and fail to remedy such default or breach within 7 (seven) days after having received a written notice from us to do so;
- You fail to pay any amount due in terms of this Agreement;
- You become insolvent, or for statutory purposes you are deemed to be unable to pay your debts as they become due, or the value of your assets is less than the amount of your liabilities; or
- You allow a civil judgment to be entered against you which affects your status as a going concern, and you fail to pay the amount due for such judgment within 10 (ten) days after the date on which the judgment became final (in the sense that all avenues for appeal, review or rescission have been exhausted or are no longer available); or
- You have taken steps to propose any compromise or other arrangement with your creditors generally, or you have taken steps to obtain a winding-up order, or you have allowed such an order to be taken against you; or
- You have allowed your business or assets to be placed under the control or custody of another person by operation of law,
- then we shall be entitled, in addition to and without prejudice to any other right we may have in law or in terms of this Agreement, to enforce specific performance of the terms of this Agreement, or to cancel this Agreement; and in either event, recover such damages as we may have sustained.
- You will indemnify and hold us, our agents, employees, directors, suppliers and licensors, and our respective subsidiaries, affiliates, officers, agents, employees, representatives, and assigns harmless against all legal costs, charges, disbursement, and fees incurred by us in successfully enforcing or defending any provision of this agreement.
Right to suspend use
- We reserve our right, without prejudice to any other rights and remedies we may have, to suspend your access and use of the Products without cancelling this Agreement should you fail to pay any amount due to us in terms of this Agreement or if you or any of your Authorised Users infringe our Acceptable Use.
- No such suspension shall be deemed to be a termination or breach of this Agreement by us.
- Either of us may terminate this agreement at any time and for any reason by giving the other not less than 7 (seven) days’ written notice of its intention to do so.
- If this agreement is terminated:
- All outstanding sums payable by you to us will immediately become due and payable;
- All rights and licences granted to you in terms of this Agreement will cease immediately on date of termination and you and/or your Authorised Users will cease all and any further use of the Products;
- You will promptly return all copies of the User Documentation to us and confirm in writing to us that you have done so; or, if we so request, you will destroy all copies of the User Documentation in your possession.
- The termination of this agreement will be without prejudice to the provisions of this clause and to any rights of either party which may have accrued by, at, or up to the date of such termination.
Addresses for service
- Any notices or process required or permitted to be given in terms of this agreement will be valid only if given in writing and delivered by hand, registered post, or email to your designated physical and email address given when you register as a licensee with us.
- Any notice which is:
- delivered by hand, will be deemed, unless the contrary is proved, to have been received on the day of delivery;
- delivered by registered mail to its address will be deemed, unless the contrary is proved, to have been received on the 7th (seventh) day after date of posting;
- delivered by email to its address will be deemed, unless the contrary is proved, to have been received on the next business day following the date of transmission.
- If you change your designated physical and/or email address, you must immediately notify us in writing of that change and it will only become effective 7 (seven) days after such notice has been received by us.
- This Agreement constitutes the entire agreement between the parties in relation to the subject matter and it supersedes all proposals, oral and written, between us.
- Neither party shall have any claim or right of action arising from any undertaking or representation not included in this Agreement.
- No failure by a party to enforce any provision of this Agreement shall constitute a waiver of such provision or affect in any way a party’s right to require the performance of such provision at any time in the future, nor shall a waiver of a subsequent breach nullify the effectiveness of the provision itself.
- No agreement to vary, add to or consensually cancel this Agreement or any part thereof, including this clause, shall be of any force and effect unless reduced to writing and signed by both parties.
- Any invalidity, in whole or in part, of any provision of this Agreement shall not affect the validity of any other of its provisions.
- This Agreement shall be governed, construed and take effect in all respects in accordance with the laws of the United Kingdom. The parties hereby consent to the jurisdiction of the Magistrates Court having competent jurisdiction over their person, regardless of whether the amount of any claim exceeds the jurisdiction of that court.
- Any provision of this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement shall survive any termination or expiration of this Agreement and continue in full force and effect, notwithstanding that the clause itself does not provide for such survival.
Changes to this Agreement
- We may update or modify this Agreement from time to time, including any referenced policies and other documents.
- If we modify the Agreement, the modified version will become effective and applicable from the date issued.
- If you object to any modified version of this Agreement, your exclusive remedy is to not place any further Orders and/or to stop using the Products.
- For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.