Hexnode MDM Software as a Service Agreement

IF YOU ARE ACCEPTING THIS SOFTWARE-AS-A-SERVICE TERMS OF USE (“AGREEMENT”) ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (“CUSTOMER”), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT. UNLESS A SEPARATE LICENSE AGREEMENT HAS BEEN SIGNED BY CUSTOMER AND AN AUTHORIZED REPRESENTATIVE OF MITSOGO INC. (“MITSOGO”), THIS AGREEMENT CONSTITUTES THE ENTIRE UNDERSTANDING BETWEEN THE PARTIES (“MITSOGO” AND “CUSTOMER”) AND SUPERSEDES ANY AND ALL PRIOR OR CONTEMPORANEOUS DISCUSSIONS OR AGREEMENTS. BY CLICKING “ACCEPT” CUSTOMER ACCEPTS THIS AGREEMENT AND THE AGREEMENT WILL BE DEEMED A BINDING CONTRACT BETWEEN THE PARTIES. IF CUSTOMER DOES NOT AGREE TO OR CANNOT COMPLY WITH THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT IN THEIR ENTIRETY OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND THE CUSTOMER, THEN DO NOT CLICK "ACCEPT" THEN YOU SHALL NOT (AND SHALL HAVE NO RIGHT TO) ACCESS THE PRODUCTS

You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

Agreement

1. Definitions

1.1 Except to the extent expressly provided otherwise, in this Agreement:
  • "Account"means an account enabling a person to access and use the Hosted Service of Hexnode MDM.
  • "Agreement" means this agreement including any Schedules, and any amendments to this Agreement from time to time;
  • "Business Day" means any weekday other than a bank or public holiday in the United States
  • "Business Hours" means the hours of [09:00 to 17:00 PST] on a Business Day;
  • "Charges" means the following amounts:
  • (a) Yearly/monthly fees in accordance with various editions of Hexnode MDM purchased;
  • (b) [such amounts as may be agreed in writing by the parties from time to time]; and
    "Customer Confidential Information" means:
  • (a) any information disclosed by [or on behalf of the Customer to Mitsogo at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
    1. was marked as "confidential"; or
    2. should have been reasonably understood by Mitsogo to be confidential;
  • (b) [the Customer Data
  • "Customer Data" means [all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to Mitsogo for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Service by the Customer];
  • "Documentation" means [the documentation for the Service produced by Mitsogo and delivered or made available by Mitsogo to the Customer];
  • "Effective Date" means [the date of execution of this Agreement];
  • "Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including [failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars]);
  • "The Service" means the Mobile Device Management software made available as a subscription service for the customer by Mitsogo in accordance with this Agreement.
  • "Service Defect" means a defect, error or bug in the Platform having an adverse effect on the appearance, operation, functionality or performance of the Service, but excluding any defect, error or bug caused by or arising as a result of:
    1. [any act or omission of the Customer or any person authorized by the Customer to use the Platform or the Service];
    2. [any use of the Platform or The Service contrary to the Documentation, whether by the Customer or by any person authorized by the Customer];
    3. [a failure of the Customer to perform or observe any of its obligations in this Agreement]; and/or
    4. [an incompatibility between the Platform or The Service and any other system, network, application, program, hardware or software not specified as compatible in the Service Specification];
"The Service Specification" means the specification for the Platform and The Service set out in [Part 2 of Schedule 1 (The Service particulars) and in the Documentation];
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Maintenance Services" means the general maintenance of the Platform and The Service, and the application of Updates and Upgrades;
"Mobile App" means the mobile application known as Hexnode MDM that is made available by Mitsogo through the Google Play Store and the Apple App Store;
"Permitted Purpose" means the monitoring and management of mobile devices enrolled with your Hexnode MDM instance or otherwise accessing a service explicitly provided by Mitsogo for your use.
"Personal Data" has the meaning given to it in the Data Protection Act 1998;
"Platform" means the platform managed by Mitsogo and used by Mitsogo to provide the Service [, including [the application and database software for the Service, the system and server software used to provide the Service, and the computer hardware on which that application, database, system and server software is installed]];
"Schedule" means any schedule attached to main body of this Agreement;
"Services" means any services that Mitsogo provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
"Support Services" means support in relation to [the use of, and the identification and resolution of errors in, the Service, but shall not include the provision of training services];
"Term" means the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;
"Update" means [a hotfix, patch or minor version update to any Platform software]; and
"Upgrade" means [a major version upgrade of any Platform software].

2  Credit

  • 2.1  This document was created using a template from SEQ Legal (http://www.seqlegal.com).

3 Term

  • 3.1  This Agreement shall come into force upon the Effective Date..
  • This Agreement shall continue in force until the Customer's access to Hexnode MDM subscription service has been stopped subject to termination in accordance with Clause 18.

4 The Service

  • 4.1  [Mitsogo shall ensure that the Platform will [,on the Effective Date,] automatically generate an Account for the Customer and provide to the Customer login details for that Account
  • 4.2 Mitsogo hereby grants to the Customer a [worldwide, non-exclusive] license to use the The Service [ by means of [a Supported Web Browser]] [ for [the internal business purposes of the Customer]] [ in accordance with the Documentation] during the Term.
  • 4.3 Mitsogo hereby grants to the Customer a [worldwide, non-exclusive] license to use the The Service [ by means of [a Supported Web Browser]] [ for [the internal business purposes of the Customer]] [ in accordance with the Documentation] during the Term.
    1. [the Service may only be used by [the officers, employees, agents and subcontractors of the Customer]];
    2. [the Service may only be used by users as agreed upon, providing that the Customer may change, add or remove a designated named user in accordance with [the procedure set out therein]]; and
  • 4.4 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the license granted by Mitsogo to the Customer under Clause 4.2 is subject to the following prohibitions:.
    1. [the Customer must not sub-license its right to access and use the Service];
    2. [the Customer must not permit any unauthorized person to access or use the Service];
    3. [the Customer must not use the Service to provide services to third parties];
    4. [the Customer must not republish or redistribute any content or material from the Service]; and
    5. [the Customer must not make any alteration to the Platform [, except as permitted by the Documentation]].
  • 4.5 The Customer shall use reasonable endeavors, including reasonable security measures relating to [ administrator] Account access details, to ensure that no unauthorized person may gain access to the Service using an [ administrator] Account.
  • 4.6 Mitsogo shall use [ all] reasonable endeavors to maintain the availability of the Service to the Customer [at the gateway between the public internet and the network of the hosting services provider for the Service], but does not guarantee 100% availability.
  • 4.7 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
    1. a Force Majeure Event;
    2. a fault or failure of the internet or any public telecommunications network;
    3. a fault or failure of the Customer's computer systems or networks;
    4. any breach by the Customer of this Agreement; or
    5. scheduled maintenance carried out in accordance with this Agreement.
  • 4.8 The Customer must comply with Schedule 2 (Acceptable Use Policy), and must ensure that all persons using the Service with the authority of the Customer or by means of an [administrator] Account comply with Schedule 2 (Acceptable Use Policy).
  • 4.9 The Customer must not use the Service in any way that causes, or may cause, damage to the Service or Platform or impairment of the availability or accessibility of the Service.
  • 4.10 The Customer must not use the Service:
    1. in any way that is unlawful, illegal, fraudulent or harmful; or
    2. in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
  • 4.11 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
  • 4.12 Mitsogo may suspend the provision of the Service if any amount due to be paid by the Customer to Mitsogo under this Agreement is overdue, and Mitsogo has given to the Customer at least [30 days'] written notice, following the amount becoming overdue, of its intention to suspend the Service on this basis.

5  Maintenance Services

  • 5.1 Mitsogo shall provide the Maintenance Services to the Customer [during the Term].
  • 5.2 Mitsogo shall where practicable give to the Customer [at least 10 Business Days'] prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Service or are likely to have a material negative impact upon the Service, without prejudice to Mitsogo's other notice obligations under this main body of this Agreement.
  • 5.3 Mitsogo shall give to the Customer [at least 10 Business Days'] prior written notice of the application of an Upgrade to the Platform.
  • 5.4 Mitsogo shall give to the Customer written notice of the application of any security Update to the Platform and [at least 10 Business Days'] prior written notice of the application of any non-security Update to the Platform.
  • 5.5 Mitsogo shall provide the Maintenance Services in accordance with the standards of skill and care reasonably expected from a leading service provider in Mitsogo's industry.
  • 5.6 Mitsogo may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to Mitsogo under this Agreement is overdue, and Mitsogo has given to the Customer at least [30 days'] written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.

6  Support Services

  • 6.1 Mitsogo shall provide the Support Services to the Customer during the Term.
  • 6.2 Mitsogo shall make available to the Customer a helpdesk in accordance with the provisions of this main body of this Agreement.
  • 6.3 Mitsogo shall provide the Support Services in accordance with the standards of skill and care reasonably expected from a leading service provider in Mitsogo's industry.
  • 6.4 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
  • 6.5 Mitsogo shall respond promptly to all requests for Support Services made by the Customer through the helpdesk.
  • 6.6 Mitsogo may suspend the provision of the Support Services if any amount due to be paid by the Customer to Mitsogo under this Agreement is overdue, and Mitsogo has given to the Customer at least [30 days'] written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

7  Customer Data

  • 7.1 The Customer hereby grants to Mitsogo a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of Mitsogo's obligations and the exercise of Mitsogo's rights under this Agreement[, together with the right to sub-license these rights [to its hosting, connectivity and telecommunications service providers] to the extent reasonably required for the performance of Mitsogo's obligations and the exercise of Mitsogo's rights under this Agreement].
  • 7.2 The Customer warrants to Mitsogo that [the use of the Customer Data by Mitsogo in accordance with this Agreement] will not:
    1. [breach the provisions of any law, statute or regulation];
    2. [infringe the Intellectual Property Rights or other legal rights of any person]; or
    3. [give rise to any cause of action against Mitsogo],
    in each case [in any jurisdiction and under any applicable law].

8 Mobile App

  • 8.1 The parties acknowledge and agree that the use of the Mobile App, the parties' respective rights and obligations in relation to the Mobile App and any liabilities of either party arising out of the use of the Mobile App shall be subject to separate terms and conditions, and accordingly this Agreement shall not govern any such use, rights, obligations or liabilities.

9 No assignment of Intellectual Property Rights

  • 9.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from Mitsogo to the Customer, or from the Customer to Mitsogo.

10 Charges

  • 10.1 The Customer shall pay the Charges to Mitsogo in accordance with this Agreement.
  • 10.2 If the Charges are based in whole or part upon the time spent by Mitsogo performing the Services, Mitsogo must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to Mitsogo any Charges in respect of Services performed in breach of this Clause 10.2.
  • 10.3 All amounts stated in or in relation to this Agreement, unless the context requires otherwise, do not include Taxes, and the customer shall pay all Taxes applicable to payments between the parties under this agreement..
  • 10.4 Mitsogo may elect to vary [any element of the Charges] by giving to the Customer not less than [30 days'] written notice of the variation [ expiring [on any anniversary of the date of execution of this Agreement

11 Payments

  • 11.1 The Customer shall pay the Charges to Mitsogo in accordance with this Agreement.
  • 11.2 Customer shall pay all Mitsogo invoices within 30 days of the invoice date. If Customer is delinquent in payment of any portion of an invoice, Mitsogo may, in addition to any other remedies it may have, including termination, suspend access to the Service and/or provision of all services to Customer.
  • 11.3 All amounts stated in or in relation to this Agreement, unless the context requires otherwise, do not include Taxes, and the customer shall pay all Taxes applicable to payments between the parties under this agreement..

12 Provider's confidentiality obligations

  • 12.1 Mitsogo must:
    1. keep the Customer Confidential Information strictly confidential;
    2. not disclose the Customer Confidential Information to any person without the Customer's prior written consent [, and then only under conditions of confidentiality [approved in writing by the Customer]
    3. use the same degree of care to protect the confidentiality of the Customer Confidential Information as Mitsogo uses to protect Mitsogo's own confidential information of a similar nature, being at least a reasonable degree of care;
    4. [act in good faith at all times in relation to the Customer Confidential Information]; and
    5. [not use any of the Customer Confidential Information for any purpose other than the Permitted Purpose].
  • 12.1 If the Charges are based in whole or part upon the time spent by Mitsogo performing the Services, Mitsogo must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to Mitsogo any Charges in respect of Services performed in breach of this Clause 10.2.
  • 12.2 Notwithstanding Clause 12.1, Mitsogo may disclose the Customer Confidential Information to Mitsogo's [officers, employees, professional advisers, insurers, agents and subcontractors] [who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose and] who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
  • 12.3 This Clause 12 imposes no obligations upon Mitsogo with respect to Customer Confidential Information that:
    1. is known to Mitsogo before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
    2. is or becomes publicly known through no act or default of Mitsogo; or
    3. [is obtained by Mitsogo from a third party in circumstances where Mitsogo has no reason to believe that there has been a breach of an obligation of confidentiality].
  • 12.4 The restrictions in this Clause 12 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of Mitsogo on any recognized stock exchange
  • 12.5  The provisions of this Clause 12 shall continue in force [indefinitely following the termination of this Agreement] following the termination of this Agreement, at the end of which period they will cease to have effect].

13 Data protection

  • 13.1 The Customer warrants to Mitsogo that it has the legal right to disclose all Personal Data that it does in fact disclose to Mitsogo under or in connection with this Agreement [, and that the processing of that Personal Data by Mitsogo for the Permitted Purpose in accordance with this Agreement will not breach any applicable data protection or data privacy laws (including the Data Protection Act 1998)].
  • 13.2  To the extent that Mitsogo processes Personal Data disclosed by the Customer, Mitsogo warrants that:
    1. it will act only on instructions from the Customer in relation to the processing of that Personal Data;
    2. it has in place appropriate security measures (both technical and organizational) against unlawful or unauthorized processing of that Personal Data and against loss or corruption of that Personal Data; and

14 Warranties

  • 14.1 Mitsogo warrants to the Customer that:
    1. [Mitsogo has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement];
    2. [Mitsogo will comply with all applicable legal and regulatory requirements applying to the exercise of Mitsogo's rights and the fulfilment of Mitsogo's obligations under this Agreement]; and
    3. [Mitsogo has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement].
  • 14.2  Mitsogo warrants to the Customer that:
    1. [the Platform and The Service will conform in all [ material] respects with the Service Specification];
    2. [the Service will be free from Service Defects];
    3. [the application of Updates and Upgrades to the Platform by Mitsogo will not introduce any Service Defects into the Service];
    4. [the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs]; and
    5. [the Platform will incorporate security features reflecting the requirements of good industry practice].
  • 14.3  Mitsogo warrants to the Customer that the Service, when used by the Customer in accordance with this Agreement, will not breach [any laws, statutes or regulations applicable under U.S. law].
  • 14.4  Mitsogo warrants to the Customer that the Service, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person [in any jurisdiction and under any applicable law].
  • 14.5  If Mitsogo reasonably determines, or any third party alleges, that the use of the Service by the Customer in accordance with this Agreement infringes any person's Intellectual Property Rights, Mitsogo may at its own cost and expense:
    1. modify the Service in such a way that they no longer infringe the relevant Intellectual Property Rights; or
    2. procure for the Customer the right to use the Service in accordance with this Agreement.
  • 14.6  The Customer warrants to Mitsogo that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
  • 14.7  All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

15 Acknowledgements and warranty limitations

  • 15.1  The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, Mitsogo gives no warranty or representation that the Service will be wholly free from defects, errors and bugs.
  • 15.2  The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, Mitsogo gives no warranty or representation that the Service will be entirely secure.
  • 15.3  The Customer acknowledges that the Service is designed to be compatible only with that software and those systems [specified as compatible in the Service Specification]; and Mitsogo does not warrant or represent that the Service will be compatible with any other software or systems.
  • 15.4  The Customer acknowledges that Mitsogo will not provide any [legal, financial, accountancy or taxation advice] under this Agreement or in relation to the Service; and, except to the extent expressly provided otherwise in this Agreement, Mitsogo does not warrant or represent that the Service or the use of the Service by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

16 Limitations and exclusions of liability

  • 16.1  Nothing in this Agreement will:
    1. limit or exclude any liability for death or personal injury resulting from negligence;
    2. limit or exclude any liability for fraud or fraudulent misrepresentation;
    3. limit any liabilities in any way that is not permitted under applicable law; or
    4. exclude any liabilities that may not be excluded under applicable law.
  • 16.2  The limitations and exclusions of liability set out in this Clause 16 and elsewhere in this Agreement:
    1. are subject to Clause 16.1; and
    2. govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
  • 16.3  [Neither party shall be liable to the other party] in respect of any losses arising out of a Force Majeure Event.
  • 16.4  [Neither party shall be liable to the other party] in respect of any loss of profits or anticipated savings.
  • 16.5  [Neither party shall be liable to the other party] in respect of any loss of revenue or income.
  • 16.6  [Neither party shall be liable to the other party] in respect of any loss of use or production.
  • 16.7  [Neither party shall be liable to the other party] in respect of any loss of business, contracts or opportunities.
  • 16.8  [Neither party shall be liable to the other party] in respect of any loss or corruption of any data, database or software [; providing that this Clause 16.8 shall not protect Mitsogo unless Mitsogo has fully complied with its obligations under Clause 7.3 and Clause 7.4].
  • 16.9  [Neither party shall be liable to the other party] in respect of any special, indirect or consequential loss or damage.
  • 16.10  The liability of Mitsogo under this Agreement in respect of any event or series of related events shall not exceed the greater of the total amount paid and payable by the Customer to Mitsogo under this Agreement in the 12-month period preceding the commencement of the event or events.
  • 16.11  The aggregate liability of [each party to the other party] under this Agreement shall not exceed the greater of the total amount paid and payable by the Customer to Mitsogo under this Agreement.

17 Force Majeure Event

  • 17.1  If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement [ (other than any obligation to make a payment)], that obligation will be suspended for the duration of the Force Majeure Event.
  • 17.2  A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
    1. promptly notify the other; and
    2. inform the other of the period for which it is estimated that such failure or delay will continue.
  • 17.3  A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

18 Termination

  • 18.1  Either party may terminate this Agreement by giving to the other party [at least 30 days'] written or email notice of termination.
  • 18.2  Either party may terminate this Agreement immediately by giving written or email notice of termination to the other party if the other party commits a material breach of this Agreement.
  • 18.3  Either party may terminate this Agreement immediately by giving written or email notice of termination to the other party if:
    1. the other party:
      1. is dissolved;
      2. ceases to conduct all (or substantially all) of its business;
      3. is or becomes unable to pay its debts as they fall due;
      4. is or becomes insolvent or is declared insolvent; or
      5. convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
    2. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
    3. an order is made for the winding up of the other party, or the other party passes a resolution for its winding up [ (other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of the other party under this Agreement)]; or
    4. [if that other party is an individual:
      1. that other party dies;
      2. as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
      3. that other party is the subject of a bankruptcy petition or order.

19 Effects of termination

  • 19.1  Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): [Clauses 1, 4.11, 8, 11.2, 11.4, 12, 16, 19, 22 and 23].
  • 19.2  The termination of this Agreement shall not affect the accrued rights of either party.
  • 19.3  Within [30 days] following the termination of this Agreement for any reason:
    1. the Customer must pay to Mitsogo any Charges in respect of Services provided to the Customer before the termination of this Agreement; and
    2. Mitsogo must refund to the Customer any Charges paid by the Customer to Mitsogo in respect of Services that were to be provided to the Customer after the termination of this Agreement,
    without prejudice to the parties' other legal rights.

20 Notices

  • 20.1  Any notice from one party to the other party under this Agreement must be given by one of the following methods
    1. delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
    2. sent by recorded signed-for mail, in which case the notice shall be deemed to be received upon delivery and acceptance.
    3. delivered by email or fax transmission, in which case the notice shall be deemed to be received upon successful transmission.
  • 20.2   Mitsogo's contact details for notices under this Clause 20 are as follows: Mitsogo Inc. 340 S Lemon Ave #5997, Walnut, CA 91789., email: support@hexnode.com
  • 20.3  The addressee and contact details set out in Clause 20.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 20.

21 Subcontracting

  • 21.1   Mitsogo may subcontract any of its obligations under this Agreement [, providing that Mitsogo must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question].
  • 21.2   Mitsogo shall remain responsible to the Customer for the performance of any subcontracted obligations.
  • 21.3  Notwithstanding any other provision of this Agreement, the Customer acknowledges and agrees that Mitsogo may subcontract [to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform].

22 General

  • 22.1   No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
  • 22.2   If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
  • 22.3  This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
  • 22.4   Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
  • 22.5   This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party
  • 22.6  Subject to Clause 16.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
  • 22.7   This Agreement shall be governed by and construed in accordance with US law.
  • 22.8   The courts of the United States shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

23 General

  • 23.1   In this Agreement, a reference to a statute or statutory provision includes a reference to:
    1. that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
    2. any subordinate legislation made under that statute or statutory provision.
  • 23.2   The Clause headings do not affect the interpretation of this Agreement.
  • 23.3  In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

Schedule 1 (Service particulars)

  • Specification of The Service
    (a) Online Mobile Device Management solution
  • Financial provisions
    Yearly/Monthly charges in accordance with editions purchased.
  • Contractual notices
    [Customer contractual notices address details]

Schedule 2 (Acceptable Use Policy)

  • Introduction
    • 1.1 This acceptable use policy (the "Policy") sets out the rules governing:
      1. the use of [the website at https://www.hexnode.com, any successor website, and the services available on that website or any successor website] (the "Services"); and
      2. the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").
  • References in this Policy to "you" are to [any customer for the Services and any individual user of the Services] (and "your" should be construed accordingly); and references in this Policy to "us" are to [identify provider] (and "we" and "our" should be construed accordingly).
  • By using the Services, you agree to the rules set out in this Policy.
  • We will ask for your express agreement to the terms of this Policy before [you upload or submit any Content or otherwise use the Services].
  • You must be [at least 18 years of age] to use the Services; and by using the Services, you warrant and represent to us that you are at least 18 years of age.

2 General usage rules

  • 2.1   You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
  • 2.2  
    1. in any way that is unlawful, illegal, fraudulent or harmful; or
    2. in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
  • 2.3  You must ensure that all Content complies with the provisions of this Policy.

3 Unlawful Content

  • 3.1   Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
  • 3.2  Content [, and the use of Content by us in any manner licensed or otherwise authorized by you,] must not:
    1. [be libelous or maliciously false];
    2. [be obscene or indecent];
    3. [infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right];
    4. [infringe any right of confidence, right of privacy or right under data protection legislation];
    5. [constitute negligent advice or contain any negligent statement];
    6. [constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity];
    7. [be in contempt of any court, or in breach of any court order];
    8. [constitute a breach of racial or religious hatred or discrimination legislation];
    9. [be blasphemous];
    10. [constitute a breach of official secrets legislation]; or
    11. [constitute a breach of any contractual obligation owed to any person].
  • 3.3  You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.

4 Graphic material

  • 4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question [, and in particular for children [ over 12 years of age]].
  • 4.2 Content must not depict violence [ in an explicit, graphic or gratuitous manner].
  • 4.3 Content must not be pornographic [ or sexually explicit].

5 Factual accuracy

  • 5.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question [, and in particular for children [ over 12 years of age]].
  • 5.2 Statements of fact contained in Content and relating to persons (legal or natural) must be true [; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion].

6 Negligent advice

  • 6.1 Content must not consist of or contain any [legal, financial, investment, taxation, accountancy, medical or other professional] advice, and you must not use the Services to provide any legal, financial, investment, taxation, accountancy, medical or other professional advisory services.
  • 6.2 Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.

7 Etiquette

  • 7.1 Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behavior on the internet.
  • 7.2 Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
  • 7.3 Content must not be liable to cause annoyance, inconvenience or needless anxiety.
  • 7.4 You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
  • 7.5 You must not use the Services for the purpose of deliberately upsetting or offending others.
  • 7.6 You must not unnecessarily flood the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.
  • 7.7 You must ensure that Content does not duplicate other content available through the Services.
  • 7.8 You must ensure that Content is appropriately categorized.
  • 7.9 You should use appropriate and informative titles for all Content.
  • 7.10 You must at all times be courteous and polite to other users of the Services.

8 Etiquette

  • 8.1 You must not [ without our written permission] use the Services for any purpose relating to [the marketing, advertising, promotion, sale or supply of any product, service or commercial offering].
  • 8.2 Content must not constitute or contain spam, and you must not use the Services to store or transmit spam - which for these purposes shall include [all unlawful marketing communications and unsolicited commercial communications].
  • 8.3 You must not send any spam [ or other marketing communications] to any person using any email address [ or other contact details] made available through the Services or that you find using the Services.
  • 8.4 You must not use the Services to promote or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, "get rich quick" schemes or similar letters, schemes or programs.

9 Gambling

  • 9.1 You must not use the Services for any purpose relating to [gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity].

10 Monitoring

  • 10.1 You acknowledge that we do not actively monitor the Content or the use of the Services.

11 Data mining

  • 11.1 You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.

12 Hyperlinks

  • 12.1 You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.

13 Harmful software

  • 13.1 The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
  • 13.2 The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.